LAW REFORM COMMISSION OFTANZANIA

UNITED REPUBLIC OF TANZANIALAW REFORM COMMISSION OF TANZANIA

REPORT ON THE LABOURLAW

PRESENTEDTO THE MINISTER FOR JUSTICE AND CONSTITUTIONAL AFFAIRS,

MINISTRY OF JUSTICE AND CONSTITUTIONAL AFFAIRSDARES SALAAM, TANZANIA

2001

TABLE OF CONTENTS page

The CommissionLetter of Transmittal viAcknowledgement viiExecutive Summary viiiList ofAbbreviations xii

CHAPTER 1 1INTRODUCTION 1Statement of Scope of the Report 1Terms of Reference 3Labour Law Reform Committee 5Interpretation of the Terms of Reference 5Methodology 5

IV

CHAPTER II 6THE LABOUR REGIME IN TANZANIA 6Historical Labour Perspective 6State Management of Labour 8Need for change 9

CHAPTER III 11THE CONTRACT OF EMPLOYMENT 11Introduction 11Terms and Conditions of Service 13Productivity 14Worker s Participation 15Determinationof the Contract of Employment 18

CHAPTER IV 21TRADE UNIONS 21Background of Trade Union in Tanzania 21Statutory Trade Unions 23Free Trade Unions 26Analysis of the Ordinance and the Act 28

CHAPTER V 41COLLECTIVE BARGAINING 41Collective Bargaining in the Public Sector 41Collective Bargaining in Private Sector 44

CHAPTER VI 49

SETTLEMENT OF DISPUTES 49

Disciplinary Control in the Civil Service and Local 49Government

Disciplinary Code 50Conciliation Boards for Management Cadre 52Dispute and Trade Disputes 53Strikes 55Other Strikes causes 55

CHAPTER VII 59ADMINISTRATION OF LABOUR LAWS 59Labour Statistics 60Labour Advisory Board 61Workmen s Compensation 62Child Labour 63Child Labour in Tanzania 63Causes of Child Labour 64General Findings 65Regulatory Measures Taken to Combat Child Labour 67Experience from Other Countries 69Employment of Children in Training Institution 69Protection of Child s Health and Safety 70Offences and Penalties 70

CHAPTER VIII 73

RECOMMENDATIONS 73

APPENDICES: 77

ill

THE LAW REFORM COMMISSION

The Law Reform Commission of Tanzania was established under section 3 of the

Law Reform Commission of Tanzania Act, 1980, to take and keep under review allthe law of the United Republic with a view to its systematic development and reform.

The Researchers are:

Hon. Mr. Anthony BahatiChairman

Ms. Julie Catherine ManningTime Commissioner

Full

Hon. Asha-Rose Migiro (MP)Part Time Commissioner

Minister for CommunityDevelopment Children and

Gender.

Mr. Eliuther KapingaPart-Time Commissioner

Advocate of the High Courtand Court ofAppeal of

Tanzania

The Researchers are:

1. Mr. M. M. Matt-Chikawe2. Mr. A. A. Msangi3. Ms. Fauster M. Ngowi

IV

Mr. Damian SalekaMeela

Full TimeCommissioner

Hon. Mr. Pius Msekwa(MP)

Part TimeCommissioner Speaker,National Assembly of

Tanzania

Mr. Mohamed Ismail

Part- Time

CommissionerAdvocate of the High

Court and Court ofAppeal of Tanzania

Mr. Bethuel M.K.Mmilla

Secretary of theCommission

Principal Law Research OfficerPrincipal Law Research OfficerSenior Law Research Officer

4. Ms Martha M. Kisyombe - Senior Law Research Officer

5. Mr. Adam J. Mambi - Law Research Officer

6. Ms Angela A . Bahati - Law Research Officer

7. Mr. Joseph T. Kaare - Law Research Officer

8. Ms Agnes Z. Mgeyekwa - Law Research Officer

9. Mr. Fortunatus P. Swai - Law Research Officer

10. Ms. Ummy A. Mwalimu - Law Research Officer

The Commission offices are located along Sokoine Drive/Ohio Street N.I.C Building, LifeHouse. Wing C, P.OBox 3580, Dar Es Salaam, Tanzania, Telephone Number 255 022- 2111385/

2111390/2123533/4.

THE UNITED REPUBLIC OF TANZANIATHE LAW REFORM COMMISSION OF TANZANIA

Telegrams TUMESHERIA

Telephone 111387/111390123533/4

In reply please quote:

Ref. No. LRCC/L.IO/2/

Hon. Harith Bakari Mwapachu, (MP.)Minister for Justice and Constitutional Affairs,P.O. Box 9050,DAR ES SALAAM

P.O. Box 3580,DAR ES SALAAM.

June, 2001

REPORT ON THE LABOUR LAW

The Law Reform Commission has completed research on the Labour Law in accordancewith the reference of the Attorney General dated 13Ih May, 1986.

In line with section 14(1) of the Law Reform Commission of Tanzania Act, 1980 wehave the honour to submit the Final Report on the Labour Law.

Judge (Rtd.) Antony BahatiCHAIRMAN

VI

ACKNOWLEDGEMENT

In the course of writing this Report the Commission has received contributions fromvarious people within and outside the Commission. The Commission isparticularly indebtedto DANIDA andUNICEF for substantially funding this project.

The Commission would like to put on record that this Report would not have beenproduced save for the dedicated service of the Commission staff, the Labour Law ReformCommittee and those whocontributed unnoticeably.

In the final analysis, however, the Commission bears full collect responsibility for boththe form and contents of this Report.

Vll

EXECUTIVE SUMMARY

LABOUR LAW PROJECT AND ITS BACKGROUND

THE REFERENCE:In May, 1986 the Honourable Minister for Justice and Attorney General made areference, in writing to the Law Reform Commission of Tanzania to carryoutresearch project on the Labour Law. This reference was made under section 8ofthe Law Reform Commission of Tanzania Act, No. 11 of 1980.

THE COMMISSION:Pursuant to section 8 of the Law Reform Commission of TanzaniaAct No. 11 of1980, the Attorney General shall from time to time refer matters to theCommission. The section reads:

(1) Subject to any directions given by the Minister, the Attorney General shallfrom time to time,refer to the Commission matters whichthe Commission may,subject to the provisions of this Act, examine and report upon and makerecommendations with a view to reforming the law in relation to those matters.

(2) The Attorney General may, inpursuance ofthe provisions of subsection(1), refer to the Commission matters connected generally with specificenactments.

(3) The Attorney General may -(a) modify the terms of any reference; or(b) give directions to the Commission as to the order inwhich it shalldeal with references.(4) The Attorney General shall not refer to the Commission any matterwhich he knows to be subject of proceedings in any court in the UnitedRepublic towhich it is intended to commence proceedings ina court .

TERMS OF REFERENCE:The Terms of Reference required the Commission to examine the subject andcome up with legal aswell associal reform recommendations. The following arethe Terms of Reference:

I, DAM1AN ZEFRIN LUBUVA, ATTORNEY GENERAL, HAVINGREGARD TO:

(a) The function of the Law Reform Commission ofTanzania,in pursuance ofreferences to the Commission made bytheAttorney General, of reviewing laws to which the Law ReformCommission of Tanzania Act 1980 applies.

vm

(b) The desirability of enhancing productivity while at the same timecreate a smooth andharmonious relationship between employees andemployers.HEREBY REFER the following matters to the Law ReformCommission of Tanzania TO REPORT UPON;

(i) Whether the Permanent Labour Tribunal Act, 1967 after taking intoaccount s.27 (1) of the Act on making awards of the Tribunal finaland binding, adequately protects employees oremployers frompossible non-jurisdictional errors committed by the Tribunal in makingan award or deciding on matters referred to it.

(ii) Whether the Permanent Labour Tribunal Act 1967 has adequatelyserved the purposes it was intended to serve.

(iii) If the answers to (1) and (2> is no, whether any and what measurescould be adopted by way of legislation or otherwise to achieve thoseobjectives.

(Signed)DAMIAN ZEFRIN LUBUVA

MINISTER FOR JUSTICE AND ATTORNEY GENERAL

Dated this 13lh day of May 1986

Before the Law Reform Commission ofTanzania received the above named reference,ithad on its own initiative under section 9ofAct No. 11 of 1980, begun preliminaryresearch on labour laws and appointed a Labour Law Reform Committee. Thispreliminary research led to formulation of six issues which were submitted to theHonourable Minister for Justice and Attorney General under section 9 of the LawReform Commission ofTanzania Act, 1980:

(i) The fact that our labour laws are scattered in numerous enactmentthereby makingtheir application difficult and uncertain,

(ii) The relative definitions ofthe term employee as appearing in theEmployment Ordinance Cap.366, Severance Allowance Act Cap.487,and Security ofEmployment Act Cap. 574, have invariably reducedthe law into absurdity and repugnance,

(iii) That notwithstanding the existence ofPart IV ofthe Security ofEmployment Act Cap. 574, there is need for clear guidelines onhowan employercan declare his employees redundant,

IX

(iv) That the existing legal machinery for settlement ofindustrial disputesis structurally and intrinsically inadequate particularly on

(a) legal enforcement of the decisions of theMinister orPermanent Labour tribonal;

(b) representation of JUWATA and Employers in theConciliation Boards; and

(c) the rationale ofJUWATA ofassuming the role ofspokesmanfor all workers whether or not they are members,

(v) That there is need to rationalise and strengthen Workers Educationand participation as laid down in the Presidential Directive No. 1of1970 asread together with the 1973 and 1974 directive from the PrimeMinister s Office and

(vi) That the state ofthe labour laws as awhole as it is atpresent calls forreview and change.

TheLabourLawReformCommittee interpreted the reference as requiring it to assessthe track record of the Permanent LabourTribunal (now Industrial Courtof Tanzania,ICT and recommendremedial measures. With regard to the Commission s six issuestheCommittee sunderstanding wasthatitwasrequired toreview thewhole spectrumof the employment scene in Tanzania - in government, parastatal organisations andthe private sector as well as machinery for settlement ofdisputes. The Committeetook advantage of issue number (vi) and, accordingly, decided that it could engage inareas not specifically covered by issues (i- v).

THE REPORT, ITS SCOPE, FORMAT AND ITS CONTEXTThis report deals with labour laws, some ofwhich have been inthe statute books since1912. It outlines the background to the laws, institutions that operate the laws andsummary ofproposed changes. However, this report does not relate to labour laws inZanzibar since labour laws do not form part of union matters.

The report is divided into eight chapters. Chapter One isanintroduction. It discussesthe genesis ofthe Labour Law Reform Project, terms ofreference and methodology.Chapter Two gives a history of labour and measure taken by the state to transformlabour into a factor of production. It traces the development of the contract ofemployment from an involuntary arrangement to voluntary agreement betweenemployer and employee. The need for change is addressed in this chapter. ChaptersThree to Sevencontain the main body of the report. The general findings are:

(i) That labour laws are scattered; this position makes the exercise offinding thelaw a slow and painful process;

(ii) That collective bargaining for junior civil servants isundeveloped and iscompletely non existent for senior civil servants; this position also appliesto Local Government servants.

(iii) That collective bargaining, in the private sector is heavily influenced by thestate;

(iv) That dispute settlement machinery for junior staff inthe public sector is statecontrolled;

(v) That machinery for resolution oftrade disputes in the private sector is statecontrolled;

(vi) That the workers right to organise (freedom ofassociation) isnot fullyrecognised. This right is now fully recognised in theTrade Union Act no.10of 1998 which Act hasnot come into operation yet.

(vii) That the Labour Department has ignored the Labour Advisory Board to thedetriment of a purposeful development of labour laws.

Chapter Eight contains recommendations. It must be pointed out that the basis andjustifications for the various recommendaf ons are stated in chapters three to sevenThe principles upon which these recommendations are made are drawn from the historyand specificity ofsocio-economic conditions ofTanzania. These principles are;

(i) Promotion and enhancement of human rights;

(ii) liberation of civil society and full recognition and protection of theright to organise;

(iii) Elimination ofarbitrariness, officialism and excessive bureaucracyin the processof resolution of disputes;

(iv) Development of a free market economy leading to theprivate sectoroccupying the dominant position in the economy;

(v) De-concentration of the powers of the President of the UnitedRepublic;

(vi) Development towards a lean government;

This report does not deal with social security i.e. Pensions, PPF, GEPF, NSSF. Thejustification for exclusion is that social security isnot part of the labour regime.

LEGAL REFORM RECOMMENDATIONSThe recommendations of the Commission are as contained in Chapter Eight of thisReport.

ABBREVIATIONS

XI

ATE - Association of Tanganyika EmployersDANIDA - Danish International Development Agency

DPP - Director of Public Prosecutions

EA - East Africa

GS - General Scale

HAT - Housing Appeal TribunalICT - Industrial Court ofTanzaniaILO - International Labour OrganisationIMF - International Monetary FundIPEC - International Programme on Elimination of Child labourJUWATA - Jumuiya ya Wafanyakazi TanzaniaKAMUS - Kamati Maalum ya Utumishi SerikaliniLLRC - Labour Law Reform CommitteeNES - National Employment ServiceNUTA - National Union of Tanzania Workers

Association

OAU - Organisation of African UnityOTTU - Organisation of Tanzania Trade Unions.RP - Rare Profession

SADC - Southern African Development CommunityTAAE - Tanganyika Association of Agricultural EmployersTANU - TanganyikaAfrican National UnionTAPO - Tanzania Association of Parastatal OrganisationTFL - Tanganyika Federation of LabourTFTU - Tanzania Federation of Trade Unions

TLR - Tanzania Law Report

TUGHE - Trade Union of Government & Health Employees

UK - United Kingdom

UN - United Nations

TJNDP - United Nation Development ProgrammeUNICEF - United Nations Children and Education Fund

UNO - United Nations OrganisationUPE - Universal Primary EducationWDC - Workers Development Corporation

xn

CHAPTER ONE

Introduction:

1.0: In the last six centuries, the labouring population has risen from a conditionofserfdom to a state ofpolitical freedom. On this struggle for economic equalitythe victories have been won by the wage earners themselves. Where they didnot pursue their interest, they lost their interest. When they forgot to demandtheir full reward they failed to receive their full reward. Their weapons werethe strike and the trade union '

1.1: In Tanzania people lived by working on the land until the times they weredisturbed by the Easterners and Westerners. Slavery and robbery of ivoryand minerals together with forced labour disturbed them a great deal. Thecrude methods used forced the inhabitants to begin the struggle for freedom.The crude laws made by the German administration were adopted by the Britishadministration with some modifications and by the year 1922 poor workingclasses saw some labour laws made by British Administration taking placealthough they were not fair or just laws. The struggle for good laws to governthe wage earners that emerged from forced labour had begun to take place inthe 1950 s culminating into a powerful trade Union i.e. the TanganyikaFederation of Labour.

1.2: Today there are many labour laws that need revision hence the need for theLabour Law Project. The Law Reform Commission ofTanzania establishedunder section 3 of the Law Reform Commission of Tanzania Act No 11 of1980 is mandated to take and keep under review all the law of the UnitedRepublic including the labour law with a view to its systematic developmentand reform. To do so he Commission may receive References from theGovernment or may initiate References on its own accord. (Vide section 8and 9 ofAct No. 11 of 1980).

Statement of Scope of the Report:

1.3: This report deals with labour laws, some of which have been in the statutebooks since 1912. It outlines the background to the

1.4: This report does not relate to labour laws in Zanzibar since labour laws do notform part of union matters.

1.5: Chapter one is an introduction. It discusses the genesis of the Labour LawReform Project, terms of reference and methodology. Chapter two gives ahistory of labour and measures taken by the state to transform labour into afactor ofproduction. It traces the development of the contract ofemployment

1 Labour Problems. Mc Millan 1905.

from an involuntary arrangement to voluntary agreement between employerand employee. The need for change is addressed in this chapter. Chaptersthree to seven contain the main body of the report. The general findings are:

(i) that labour laws are scattered; this position makes theexercise of finding the law a slow and painful process;

(ii) that collective bargaining for junior civil servants isundeveloped and is completely non-existent for senior civilservants; this position also applies to Local Governmentservants.

(iii) that collective bargaining in the private sector is heavilyinfluenced by the state;

(vi) that dispute settlement machinery for junior staff in thepublic sector is state controlled;

(v) That machinery for resolution of trade disputes in the privatesector is state controlled;

(vii) That the Labour Department has ignored the Labour AdvisoryBoard to the detriment ofa purposeful development of labourlaws.

Chapter eight contains recommendations. It must be pointed out that the basisandjustifications for the various recommendations are stated in chapters threeto seven. The principles upon which these recommendations are made aredrawn from the history and specificity of Socio-economic conditions ofTanzania. These principles are;

(i) promotion and enhancement of human rights;

(ii) liberation of civil society and full recognition and protectionof the right to organise;

(iii) elimination of arbitrariness, officialism and excessivebureaucracy in the process of resolution of disputes;

(iv) development of a free market economy leading to the privatesector occupying the dominant position the economy;

(v) deconcentration of the powers of the President of the UnitedRepublic;

(vi) development towards a lean government;

1.6 This report does not deal with social security i.e. Pensions, PPF,GEPF, NSSF. The justification for exclusion is that social securityis not part of the labour regime.

Terms of Reference:

1.7: On the 13th day of May 1986 the Honourable Minister for Justiceand Attorney - General made a reference, in writing, to the LawReform Commission of Tanzania. This reference was made under

section 8 ofthe Law Reform Commission of Tanzania Act, No. 11 of1980 which runs as follows:

I, DAMIAN ZEFRIN LUBUVA, ATTORNEY-GENERAL, HAVING REGARD TO:

(a) The function of the Law Reform Commission of Tanzania,in pursuance of references_to the Commission made by theAttorney General, ofreviewing laws to which the Law ReformCommission of Tanzania Act 1980 applies.

(b) The desirability of enhancing productivity while at thesame time creating a smooth and harmonious relationshipbetween employees and employers.

HEREBY REFER the following matters to the LawReform Commission of Tanzania to report upon.

(i) Whether the Permanent Labour Tribunal Act, 1967 after taking intoaccount s.27 (1) of the Act on making awards of the Tribunal finaland binding, adequately protects employees of employers frompossible non-jurisdictional errors committed by the Tribunal in makingan award or deciding on matters referred to it

(ii) Whether the Permanent Labour Tribunal Act 1967 has adequatelyserved the purposes it was intended to serve.

(ii) If the answers to (1) and (2) is no, whether any and what measurescould be adopted by way of legislation or otherwise to achieve thoseobjectives.

(Signed)DAMIAN ZEFRIN LUBUVA

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

Dated this 13,hday of May, 1986

1.8: When the Commission received the above named reference, it had onits own initiative under section 9 ofAct No. 11 of 1980, begunpreliminary research on labour laws. This preliminary research led toformulation of six issues which were submitted to the HonourableMinister for Justice and Attorney-General under section 9 of the LawReform Commission of Tanzania Act, 1980:

(i) The fact that our labour laws are scattered in numerousenactment s thereby making their application difficultand uncertain,

(ii) The relative definitions of the term employee as appearingin the Employment Ordinance Cap. 366, SeveranceAllowance Act Cap.487, and Security of Employment ActCap. 574, have invariably reduced the law into absurdity andrepugnance,

(iii) That notwithstanding the existence of Part IV ofthe SecurityofEmployment Act Cap. 574, there is need for clear guidelineson how an employer can declare his employees redundant,

(iv) that the existing legal machinery for settlement of industrialdisputes is structurally and intrinsically inadequateparticularly on-

(a) legal enforcement of the decisions of the Minister orPermanent Labour Tribunal;

(b) representation of JUWATA and Employers in theConciliation Boards; and

(c) the rationale for JUWATA assuming the role ofspokesman for all workers whether or not they aremembers,

(v) that there is need to rationalise and strengthen WorkersEducation and participation as laid down in the PresidentialDirective No. 1 of 1970 as read together with the 1973 and1974 directive from the Prime Minister s Office and

(vi) That the state of the labour laws as a whole as it is at presentcalls for review and change.

Labour Law Reform Committee:

1.9: Onthe 2nd day of December 1986 the Commission appointed theLabour Law Reform Committee (LLRC) under section 11(1)ofActNo. 11 of 1980. This committee is the one that preparedthe draftupon which this report is based.2 TheCommission extends profoundgratitude and thanks to them.

Interpretation of the Terms of Reference:

1.10: The committee interpreted the reference of the Honourable Ministerfor Justice and Attorney-General as requiring it to assess the trackrecord of the Permanent Labour Tribunal (now Industrial Court ofTanzania, ICT) andto recommend remedial measures. With regard tothe Commission s six issues the committee s understanding was thatitwas required toreview thewhole spectrum of theemployment sceneinTanzania - ingovernmenl, parastatal organisations and the privatesector as well as machinery for settlementofdisputes.The committeetookadvantage of issuenumber(vi) and, accordingly, decided that itcouldengage in areas not specifically coveredby the issues (i-v).

Methodology:

1.11: In carrying outresearch, thecommittee used the followingmethodologies:

• Extensive Literature reviews:- different labour statute/code fromdifferent countries were reviewed e.g. Germany, Cyprus, Kenya,Zambia, United Kingdom and ILO Conventions.

• Administration of questionnaires:- the committee distributedninety- two (92) questions on all five items in the terms of reference.A total of four hundred (400) copies of the questionnaires weredistributed to various government offices, parastatal organisations,ILO, employers offices, the then JUWATA (now OTTU) and otherinterested persons.

• Survey:- the committee visited Morogoro, Tanga, Kilimanjaro andArusharegions to carry out in-depth interviews by using thequestionnaires to canvas for view on the subject. Semi-structuredinterviews were also conducted during the visits in differentemployers offices.

2 Mr. Ernest Ndonde-Chairman, Mis Elizabeth Nyamubi, The late Job V. Mwambuma,Mr.Africanus T. Maenda, and Mr. W.S. Mandia-Secretary.

CHAPTER TWO

2.0: THE LABOUR REGIME IN TANZANIA

The working class and the employing class, have nothing incommon.There can be no peace so long ashunger and want are found among millionsofworking people and the few who make up the employing class have all thegood things of life. 3

Historical Labour Perspective:

2.1: Labour as a factor of production in themodern sense was unknown intraditional African Societies and has developed slowly underthe aegis of theState. In African communities labourwas a personal serviceand was offeredor withheldat will. The institution of slaveryand colonialism changedallthat. Under slavery free will shifted from the labourer (slave) tothe owner ofthe labourer (slavemaster). When slavery was abolished in the 19th centurythe colonial State devised alternative methods of obtaining African labour.

2.2: In some instancesAfricans were expropriated of their lands in order to createa landless class, which would thereafter depend on wage employment.Sometimes outright force was used. Forexample in Tanganyika, Chiefsinvoked the Native Authority Ordinance of 1923 to force their subjects towork on public works for pay or for free. In other instances the introductionoftax to be paid in cash made African work in European owned plantations.This situation reminds us of a statement made by Jack Waddis in his bookThe Roots of Revolt that:

The history of African relations with theWest hasbeena history ofrobbery, robbery ofAfrican manpower, its minerals and itsagriculturalresources, and its land 4

After the partition ofAfrica at the Berlin Conference of 1884 - 1885, colonies wereformed and subsequently slavery was outlawed by 1910. The development of newcolonies required labour. So methods of getting labour were devised to developplantations and mines in the colonies.

'Industrial Workers of the World (I.W.W.).4Jack Waddis: The Roots of Revolt, London, 1961 p. 1

2.3: The State through legislation created a framework for recruitment of labour.The Germans began by creating Wage Labour and enacted the House andPoll Tax Ordinance 1912, Hut and Poll Tax Ordinance No. 13 of 1922 togetherwith Involuntary Servitude (Abolition) Ordinance, No. 13 and House TaxOrdinance, No. 26 bothof the same year, whose main purpose was to createTaxation which in turn forced theAfricans to work in order to getmoney topaytaxes. In 1923 the Master andNative Servants Ordinance No32(Cap. 78of 1923) was enacted. Itsmain purpose was to facilitate and regulate theprocurement of labour for capital and repatriation. It made it mandatoryfor employers to pay wages in cash only (s.5).

The Native Authority Ordinance 1926 legalised the communal labourtribal turnouts and the tax defaulters The Master and Native Servants

(Written Contracts) Ordinance No. 28 of 1942 (Cap 79) came into force on18/12/3 942. Itmade itobligatory forcertain types ofcontracts involving nativesto bereduced into writing. The Mai-ter and Native Servants (Recruitment)Ordinance, No.6 of 1946 (Cap 80) came into force on 15/3/1946. ThisOrdinance made provisions for licensing of recruiters who were divided intotwo categories: private recruiters and professional recruiters. Section 2defined recruiting as:

anyoperations undertaken withthe objectof obtaining or supplyingthe labourof nativeswhodo not spontaneously offer their services attheplaces ofemployment, orat anoffice established byGovernment,or by an employer s organisation with the approval of the LabourCommissioner for the purpose of receiving applications foremployment, and recruit, recruiter and recruitment havecorresponding meanings .5

Thedistinguishing features of theabovepiecesof legislation werethe elementof involuntariness on the part of the native servant. Thus the notion offreedom of contractwasjettisoned and in its place a quasi-penal regime wasintroduced.

2.4: A dramatic change occurred in 1957 with the enactment of the EmploymentOrdinance, Cap366, which recognised that the contract of employment is avoluntary agreement betweenthe employer and the employee. The colonialStatepurported to conformto the standards laid down by the InternationalLabour Organisation (ILO) on employees welfare. Otherlaws passed in the1950 s are the Factories Ordinance, Cap 297, and Workmen s CompensationOrdinance, Cap263,Accidents and Occupational Diseases (Notification)Ordinance, Cap 381. Some of the above ordinances, amended from time totime, are still in force today.

-'Section 2 ofThe Master and Native Servant (Recruitment) Ordinance 1946 Cap 80.

State Management of Labour.

2.5: For sixdecades before independence Labour inTanzania was available fromthe poorest working class. This labour was employed mainly in largePlantations; mines and small manufacturing sector andit formed thepermanentwage earning class. The management ofthis labour, was done through variouslegislation spanning from the 1922 Hut and Poll Tax Ordinance to the 1962Trade Disputes Settlement Act (seeAppendix A)

2.6: Since independence the Tanzania Government has actively legislated in orderto manage labour. The principal features ofpost independence legislation areas follows:

(i) State control ofcollective bargaining: Civil Service (NegotiatingMachinery) Act, Cap 484, Local Government Services (NegotiatingMachinery) Act, Cap 542, Local Government Negotiating MachineryActNo. 11 of 1982, Permanent LabourTribunal Act, No.41 of 1967.

(ii) Bureaucratic machinery for settlement oftrade disputes; Civil Service(Negotiating Machinery) Act, Cap484, Local Government Services(Negotiating Machinery) Act, Cap 542, Local Government NegotiatingMachinery Act No. 11 of 1982, Permanent Labour Tribunal Act, No.41 of 1967.

(iii) Enactment of the Disciplinary Code:Security of EmploymentAct, Cap 574.

(iv) Monolithic State sponsored trade unions : National Union ofTanganyika Workers Act, No. 18 of 1964, Cap 555, Jumuiya yaWafanyakazi wa Tanzania Act, No. 24of 1979; Organisation ofTanzania Trade Unions Act No. 20 of 1991

(v) Establishment ofthe check-off system: Trade Unions Ordinance(Amendment) Act, No. 51 of 1962.

(vi) Ouster ofjurisdiction ofordinary courts with regard to the Disciplinarycode and trade disputes.

2.7 Reading through Acts made after independence one notes that the freedom ofTrade Unions which wasobtained through hardstruggle had been curtailed.There was established a sole trade union by State legislation, and there wasouster ofjurisdiction ofordinary courts oflaws with regard to laws affectingdisciplinary code and settlement of disputes in certain areas.

Need for change:

2.8: By far the largest employer of labour is the public sector, (that is to saytheGovernment and parastatal organisations). This situation is likely to changein the near future on account of the following factors:

(i) Government is currently implementing (throughthe CivilService Reform Program) the Word Bank and InternationalMonetary Fund (IMF) prescriptions on lean government; alarge number ofcivil servants are retiring prematurely or arebeing retrenched.

(ii) Government abandoned the bondsystem whereby anypersontrained at Government expense for one year or more wasguaranteed employment for five years,

(iii) Trade liberalisationhas led to competition and destructionofmonopoly hitherto enjoyed by parastatal organisations,

(iv) Privatisation ofparastatal organisations issteadily proceedingunder the direction of the Presidential Parastatal SectorReform Commission.

(v) Corresponding development of the private sector in theeconomy.

(vi) Advances in technologywill result indisplacementof humanlabour by machines.

2.9: These factors point to a smaller, better-trained labour force in publicsectors.It follows that the regulatory machinery, which was devised, for a largelymanual, less educated labour force must be reconstructed and developed tosuit a modem labour force in a viable economy. Hence the need for newlabour Law Regime.

2.10: The guidingprinciples for the achievement of equitable labourregime shouldinclude the following:

(i) Labourregime shouldbe in consonance with the principleof the equality of all workers in all kinds of employment.

(ii) The Report should aim at a labour law which shall complywith the principles of human rights, in particular the rightsenshrined in the constitution of the United Republic ofTanzania and in the African Charter of Human and PeoplesRightsof 1986in general and ILO Conventions in particular.

(iii) The Labour Law should be such as would enable thiscountry to maintain respect for and uphold the Rule of Law.

(iv) TheLabour Lawthatwillemerge from thereportshould serveemployees well and should guide employers to provideequitable conditions of employment, just wages etc.

(v) The law should serve as an instrument of liberation of civicsociety and recognition and protection oftheright toorganisethe workers to claim their rights.

(vi) The Labour Lawshould provide for eliminationof arbitrariness officialism and excessive bureaucracy in theprocess of dispute management.

(vii) The law should assist thegrowth of development of a freemarket economy leading to the private sector occupying thedominant position in the economy.

CHAPTER THREE

THE CONTRACT OF EMPLOYMENT

Introduction:

3.1. The Employment Ordinance Cap 366 deals with all matters pertaining toemployment. The long titleof this legislation states thepurpose of the lawasbeing, toamend and consolidate the Law relating to Labour and regulateconditions ofemployment for Employers and Employees. This Law governsall agreements of employment. Section 13 of Part III of this Law states:

Section 13. Noperson shall employ anyemployee andnoemployee shall beemployed under any contractof serviceexcept in accordance with theprovisions of this Ordinance.In this respect therefore this Law becomes the most basic law as far asemployment and all itsdynamics are concerned. No employment will berecognised unless it was undertaken under this Ordinance. All aspects ofemployment are covered under this law. Terms and conditions ofemploymentare stipulated in this law.

3.2: Furthermore section 15-( 1) states; Contracts ofservice may beoral orwrittencontracts. Although this section is explicit, the details of these two aspectsare dealt with more exhaustively in Part IV and Part V of this Ordinance.

3.3: The sections under Part IIIdeal with contracts of service generally.Part IV and V deal with specifics. Sections 26-39 in Part IV deals with oralcontracts ofservice while sections 41 -60inPart Vdeal specifically with writtencontracts. Section 27 states that all contracts of service other than contractswhich are required by this Ordinance orany other law tobe made inwriting,may be made orally. Section 28. provides that no oral contract shall be validand binding unless the employment thereunder commences within one monthfrom the date of the contract. Section 42-(l) states that when a contract ofserviceof anemployee ismadefora periodexceeding six months or a numberof working days equivalent to six months, then that contract shall be inwriting, andan employee is required by lawto signify his consent to thecontracteither by signing the contractor affixing the impression of histhumb or fingerthereto. This requirement is provided for under subsection(2) of this section. Further, section 42-(3) states:

If a contract which is required by subsection (1) of this section tobe made in writing has notbeenmade in writing it shall notbeenforceable except during theperiod of onemonth from themakingthereof.

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3.4: The question oforal contracts was discussed in the case ofthe Director ofPublic Prosecutions v Eliatosha Moshi and another, (T.L.R 1983),Wherethe High Court held that the appellant cannot be said tohave been a workmanand was not in a contract of service with the respondent but was on anagreement for hire. The appellant in that appeal, The DPP, had charged therespondents who were partners running afleet oftaxis with four counts arisingfrom labour laws. For purposes of this report, therelevant charge was failureto prepare oral contract ofservice contrary to section 35-(l) (2) and (3) ofCap 366. The respondents had engaged thecomplainant one.Mwinyasumba Mrema as a driver ofone oftheir taxis on the agreement thathis remuneration per day be 20% ofevery day s collection. The complainantwas subsequently fired on the 4th ofAugust 1980 having worked since 13lhFebruary 1973. On termination aclaim for payment ofwages in lieu ofleaveandotherterminal benefits waspreferred through JUWATA, the worker strade union. The respondents refused to pay the claims. They weresubsequently variously charged for, among other charges, failure to preparean oral contract of service contrary to section 35-0) (2) and (3) of theEmployment Ordinance Cap 366.

The trial court had acquitted the respondents on grounds that no proof hadbeen provided to show that the complainant was an employee within themeaning ofthe law to impose liability on the respondents. In this case themajor issue for consideration was whether ornot the complainant was anemployee ofthe respondents, that is, whether the agreement between thecomplainant and the respondents amounted to acontract ofservice as stipulatedby the law. The Trial Court, The High Court and finally The Court ofAppealfound that such a relationship didnot amount to a contract of service.

3.5 From reading sections 13, 15, 27, 35 and the court s decision in the abovecited case, it becomes apparent that therecognition of oral contracts thoughreal in law, the scope for their application is limited. From history it wouldappear that such oral contracts were designed for use by largely labourers inbig plantations ofsisal, sugar, coffee, tea and such kind ofworkers as road orrailway builders and repairers, ordock workers. Basically an oral contractwere meant for those who were illiterate and whose work was temporary,piece meal orwas only for ashort period oftime not amounting to orequivalentto six months.

3.6 The Commission is of the viewthat the principle of voluntariness ofemployment ofcontracts as provided for under section 42 (2) and furtherstrengthened under section 45 (2) ofthe Ordinance should be maintained andshould apply to written aswell as oral contracts of service.

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TERMS AND CONDITIONS OF SERVICE

3.7 Terms and conditions of service in Tanzania are regulated by a multitude oflaws depending on the grade of the particular employee and according to theemployment sector, that is to say government, local government, parastatalsectororprivatesector. The Regulation ofWages and Terms of EmploymentOrdinance Cap. 300 provides for the fixing of minimum wages by way ofminimum wages orders for all sectors of the economy. The rates fixed areconsidered as constituting the most minimum rates, and a large number ofemployees get paid well above the prescribed rates particularly in theGovernment, Local Government, and the Parastatal sector. In the private sectorhowever, the prescribed rates are usually regarded as constituting maximumrates; few employees if any in this sector pay anything above the prescribedrates. It should be noted that Cap.300 concentrates on the setting of"minimumwages, therefore, it does not cater for the supervisory and management cadres.Like this Ordinance the Severance / llowance Act Cap. 574 and EmploymentOrdinance, Cap.366 focus upon the bottom ring of employees. The terms ofservice of employees in the supervisory and management levels are purelycontractual.

3.8: The grading system of government employees is based on salary and theseare shown in section 2 of the Civil Service Act, No. 16 of 1989:

In this Act, unless the context requires otherwise appointing authoritymeans-

fa) in the case of an officer in the SS salary scale, salary scalesGS. 9 and GS.IO and RP.6 to RP.IO, the President;

(b) in the. case of an officer in the salary scale of betweenGS.3and GS.8 and RP.l to RP.5, the Civil ServiceCommission; and

(c) in the case ofan officer in the salary scales of GS.l and GS.2and for those in the Operational Service Scales, a SpecialCommittee on Employment in the Government.

The Functions of the Committee shall be:-(a) to be the appointing authority-

(i) for all employees in the operational service whosesalary scales range from OS.l to OS.10;

(ii) in the case ofthe committee established for a Ministryor an independent department for all employees inthe general scales which range from GS.l to GS.2....

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In Kiswahili this Special Committee is known as KAMATI MAALUM YAUTUMISHI SERIKALIN1 or KAMUS. The shop floor is the private sectorcomparable cadre to operational service in government.

3.9 The Commission proposes a three tier grading system for all employees- inall sectors of the economy; SHOPFLOOR, SUPERVISORY andMANAGERIAL grades. There is a debate on whether the grading systemshould be based on the type of functions performed by an employee or onsalaryearnedby the employee. The Commission is aware that salaries in theprivate sectordifferfrom those in government or parastatal organisations. Sothe salary criterion may not be reliable.The Commission,therefore,proposesa grading systembasedon functions and those functions shouldbe stated inthe letter of appointment. In this way an employee will accept appointmentaware that he/she is in the shopfloor, supervisory or managerial grade.

Productivity

3.10 The Commission proposes that the following general provisions in order toenhance productivity should apply to all contracts of employment.

(a) Grading andadvancement should beonmerit; thebestqualified shouldhave preference in employment. Subsequently actual performanceshould determine promotion and other forms of advancement in theservice ladder.

(b) Permanentby results - minimum standards should be fixed for day swork. Performance over and above the minimum should be awardedseparately; the higher the performance, the higher the pay.

(c) Recognition of talent - the best worker award should beinstitutionalised and the award system should be rationalised.

3.11 The Commission views with concern falling levels of efficiency in allemployment sectors. Many complicated formulae have been suggested toredress this. The Commission feels that the minimum wage should beequivalent to a living wagebased on the cost of living index for urbandwellersandmustalwaystake intoconsideration the varyinglevelsof inflation.

3.12 Government periodically publishes figures on cost of living index for urbandwellers; these figures shouldformthe basisfor calculation ofminimumwages.In this way yearly announcement of salary increases will not be necessary

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3.13 Further, the Commission proposes adoption ofa uniform CODE OFEMPLOYMENT ETHICS, which will bind all employers and employees inboth the public and private sectors. Itisintended that the Code should set outminimum rights and obligations ofemployers and employees and should formthe basis ofemployment contracts. The Commission propose that the code beadopted mthe process ofcollective bargaining which isdiscussed below Asample of the code is shown in Appendix B.

WORKERS PARTICIPATION

3.14.1 The Commission notes that workers participation is an important element inthe promotion ofgood industrial relations. Today, workers participation isgoverned by statutes as well as Presidential Circular No. 1of1970 Section 14ofthe Civil Service Act No. 16 of1989 makes provision for establishment ofa special Committee on Employment in the Government or of KAMATIMAALUM YA UTUMISHI SERIKALINI (KAMUS). It provides forrepresentation by atrade union; the trade union representative isrecommendedby the union and appointed by the Minister. However, theCivil ServiceCommission, which governs employees in the supervisory and manageriallevels, has no official trade union representation. This means that a largeproportion ofcivil servants isgoverned by Civil Service Commissionprocedures which are not participatory and not transparent. The Commissionrecommends that Part III, and in particular section 5. of the Civil Service Actno. 16 of 1989 be amended so that the composition of the members of theComn?'s1s,1°n inc,ude at âst one representative from the relevant trade unionle. I UGHE.

Section 6ofthe Regulation ofWages and Terms ofEmployment OrdinanceCap 300 provides for establishment by employers ofStaffCommittees. Section24 defines StaffCommittee and specifies its functions:

In this Part [PART V] ofthis Ordinance StaffCommittee meansabody ofpersons representative both ofthe employer and theemployees, set up by an employer in any undertaking after consultationwith the employees with the object of-

(a) giving the employees awider interest in and agreaterresponsibility for the conditions underwhichtheir duties areperformed;

(b) providing arecognised and direct channel ofcommunicationbetween the employees and the employer on all mattersaffecting their joint and several interests; and

3.15

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(c) promoting throughout the undertaking aspirit ofco-operationin securing the efficiency ofthe undertaking and thecontentment of the staff engaged therein .

The Commission isofthe view that this provision should be retainedsave that staff committees should progressively be disestablished atthe option of the relevant trade union(s).

3.16: The Security ofEmployment Act, Cap 574 established workers Committeeswhose functions included:

(a) to discuss with the employer, at regular intervals and at leastonce every three months means ofpromoting efficiency andproductivity;

(b) generally to assist in the furtherance ofgood relations betweenThe employer and persons employed in the business.

Section 6of the Security ofEmployment (Amendment) Act No. 45 ofl969removed productivity in the functions ofworkers Committees and under theLabour Laws (Miscellaneous Amendment) Act No.l of1975, field branchesofthe single trade union effectively replaced workers Committees.

3 17 Presidential Circular No.l of1970 entitled the ESTABLISHMENT OFWORKERS COUNCILS, EXECUTIVE COMMITTEE AND BOARD OFDIRECTORS introduced the Yugoslav concept ofworkers self-managementin industrial establishments. It directed that every Public Corporation, whichhas ten or more workers, should form a Workers Council whose functions areto evaluate performance in the light ofset targets. In the President swords:

Given a proper work environment, and Proper Co-operationand support from their leaders and fellows, the majority of Tanzanianworkers are capable ofaccepting more responsibility, and would liketo do so; they can become more creative and can accomplish more.Easy communication of ideas and information between workers, andbetween workers and all levels ofmanagement, can have the effect ofimproving the quantity and quality ofgoods produced, provided thatan atmosphere ofcommon endeavour and common responsibility iscreated. In particular, the top management must have an attitude,which regards the workers and the lower levels ofmanagement aspartners in acommon enterprise, and not just as tools like themachines they work with.This means that quite apart from the workers committees which nowexist, and which discuss conditions ofservice, warnings, anddismissals ofworkers, etc., there must be provision for the workers tobe represented on bodies which consider matters ofproduction, sales,and the general organisation ofthe enterprise. It has therefore been

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decided that all parastatal organisationsshall, as soon as possibleandin any case not later than the end of 1970, establish workers councils,and shall establish or re-establish their Executive Committees andBoards of Directors so as to give practical effect to workersrepresentation and participation in planning, productivity quality andmarketing matters. These new Workers Councils do not affect theexistence or the functions of the Worker s Committees.Their job isvery different: it is to further industrial democracy in relation to theeconomic functions of the enterprise, andgive theworkers a greaterand more direct responsibility inproduction. It is, in other words,intended that the new Workers Councils, and the reconstitutedExecutive Committees and Boards of Directors shall contribute tothe general welfare of our nation by helping the efficiency and theeffectiveness of our public enterprises. Theywill do this by ensuringthatallworkers intheseenterprises understand andaccept thepracticalimplications oftheirresponsibility to theirfellow workers andpeasantsin other sectors of the Tanzania economy .

12. The functions of the Workers Council in, and in relation to, the businessfor which it is established shall be:

(a) toadvise ontherequirements of theexisting wages and incomes policyas announced by Government from time to time;

(b) to advise on the marketing aspects of the commodity produced;(c) to advise on matters relating to the quality and quantity of the

commodity produced;(d) to advise on matters of planning;(e) to advise on other aspects of productivity, such as works and

enterpriseorganisation, technical knowledge, workers education, etc.;(f) to receive and discuss the Balance Sheet.

3.18 The Workers Council must have regard to the Government policy onProductivity. Of the 540 Workers Councils targeted, 385 (or 64%) have beenestablished to date. The text ofthe Presidential Circular No. 1 of 1970 is showninAppendix C.Onekeen observer of workers councils hasgiven thefollowingassessment:

Actually the Workers Councils have been a mockery of industrialdemocracy. They have not been institutions for workers participation at all.The workers representatives in Councils; most of them unaware of thefunctions of the councils, the purposes and ideological significance of suchcouncils; most of them ignorant of the items that are discussed or presentedfor approval, for example, the budget and the balance sheet; almost all ofthem unaware of theirvotingrights and their status, have proved to be clownsand sources of attraction to the management representative in the Council, atworst representing in the eyes of the managementa rotting fruit of industrial

democracy and at best used by the management to rubber-stamp measuresand programs adverse to the workers who have neither autonomy nor powerin the Councils. 6

3.19 There is now a debate on whether Presidential Circular No. 1 of 1970 shouldbe concretised in law. The Commission holds the view that putting legal teethto Presidential Circular No.1of 1970 is unnecessary. It is proposed that Workershould continue to be extra-legal and should perform an advisory role. TheCommission notes that all the items listed under functions ofWorkers Councilsare proper items for the processof collective bargaining. The Commissionrecommends, thereforethat Workers Councils should be scrapped off andwhere they must subsist they will do so at the instance of the relevant tradeunions.

3.20 In Some trade and professions there is a period of apprenticeship.Viewshave been expressed that the contract of employment should commenceon the date of commencement of apprenticeship. In this way an apprenticewill be entitled to wages and other rights like any other employee. TheCommission feels that a rule to that effect will discourage taking ofapprenticesby trade schools and employers. Furthermore an apprentice is actually apupil, and cannot therefore be equated to a qualified employee.

DETERMINATION OF THE CONTRACT OF EMPLOYMENT

3.21. Determination of the contract of employment for employees in the supervisoryand managerial levels in public and private sectors is governed by the contractof employment. The Commission endorses thisposition andfurtherproposesthat it shouldapplyto employees in the supervisory, managerial and operational(or shopfloor) levels. It is proposed that a three months notice be legislated.

3.22 The concept of LAY -OFF is new in labour relations in Tanzania. It is notdefined by any statute. For the purposes of this report theCommissiondefines lay-off as:

Temporary suspension of the contract of Employment by the employer forreasons outside the control of the employer, including, Without prejudice tothegenerality of the foregoing, thenon-availability orshortage of rawmaterials,breakdownof machinery, adverseclimaticconditionsor othernatural disaster.

3.23: While lay-off should be thus defined in legislation the Commission is of theview that notice, duration of lay-off, rights and obligation of employer andemployee during lay-offshould be theproper subjects forcollective bargaining.

6Mihyo P.B. (1974) Labourunrest and the guest for workers control in Tanzania: Threecase studies.Eastern Africa Law Review vol.7 no. 1 of 1974 pages 1-64 at page 7.

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3.24 The Security ofEmployment Act, Cap 574 refers to redundancy ofanemp oyee. Section 39 states that statutory compensation is not payable by theemployer in the event such employer terminates the employment on accountof the redundancy ofsuch employee. Cap 574 does not define the concept ofredundancy.

3.25 It was thus left to employees and employers, during collective bargaining todefine redundancy. And, the High Court in the case of Southern PapermillsCo. Ltd. v/s I. The Minister for Labour 2. Attorney General Misc. CcNo.2 of1994, has appropriately sought refuge in adefinition provided by theLAW Dictionary, Third Edition, Oxford, wherein redundancy is defined astermination ofservice when an employer needs fewer employees to carry outthe work in the place in which the employee is employed. Further the HighCourt has properly held that neither the Conciliation Board nor the Ministerfor Labour has jurisdiction inRedundancy cases.

3.26: The remedy available to an aggrieved employee is to institute proceedings ina court of law. As decided in the cases ofSouthern Paper Mills co Ltd vMinister forLabour (referred toabove); and The National Bank ofCommercev. Minister for Labour, High Court ofTanzania at Dar es Salaam, Misc.CCNo. 11 of1996. Alternatively, ifthe redundancy in question relates to employeesunder section 9A ofthe Industrial Court Act, 1967 the Labour Commissionermay inquire into the causes and circumstances ofthe said trade dispute andrefer it to the ICT for inquiry: Said A. Marinda & 30 Others v. Minister forLabour, High Court of Tanzania at Dares Salaam Misc. Cc. No.57 of 1996.

3.27 The current legislative provisions are concerned with procedural safeguardsonly. The Security ofEmployment Act, Cap 574, in section 6-(l) (g) providesfor the functions of a Union branch in, and inrelation to the business forwhich it is established that to consult with the employer concerning anyimpending redundancies and the application ofany joint agreement onredundancies.

3.28. In the case of Hamis Ally Ruhondo & Others v. Tanzania - ZambiaRailwayAuthority, Court of Appeal of Tanzania at Dares Salaam CivilAppeal No. 1of 1986 the Court ofAppeal held thatconsultation within themeaning ofthe Act has to be prior to the effectuation ofthe redundancy. TheCourt further held that redundancy becomes impending before and prior tothe process ofconsultation between the union field branch and the employer.

3.29. In Kihanira Kulunge Kibaya v. United Africa Company ofTanzaniaLimited, Court ofAppeal ofTanzania at Dar es Salaam, Civil Appeal No 36of 1987 the Court ofAppeal entrenched the FILO rule. It held that thefirstperson to lose his job in a redundancy exercise is the employee who has beenin employment for the shortest period in thesector concerned.

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3 30 Retrenchment is yet another nebulous expression now invogue. It waspopularised by the Civil Service Reform Program, the Parastatal Sector,Reform Program and the Local Government Reform Program. The commontheme ofthese programs probed by the Bretton Woods Institutions, that is,The World Bank (IBRD) and the International Monetary Fund (IMF), isreduction of the Labour force. The basic concept in thethinking of theseinstitutions is that by retrenching the labour force the few workers that remainwould bebetter motivated and hence attain increased efficiency. Unfortunatelythis is also their basic flaw, because inspite ofretrenchment, neither have theremaining workers been motivated nor has efficiency been attained. Therehas been an all round general economic malaise and rampant inefficiency.

3-31- The Commission feels that redundancy and/or retrenchment should now bedefined in the Employment Act, itbeing the basic law on employment Thedraftsman may wish to borrow from section 39(2) ofthe Security ofEmployment Ad, Cap 574 paragraphs (g) and (h) which state,

(g) the replacement of the employee for the purpose of improvingefficiency and productivity;

(h) the occurrence ofany circumstances which, having regard to the natureof the work or the character of the business, render the employeeunsuitable to continue to perform the work he was engaged todo.

332 The Commission recommends that notice and employees entitlements shouldbe proper subjects ofcollective bargaining between employers and employees.

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CHAPTER FOUR

TRADE UNIONS

BACKGROUND OF TRADE UNIONS IN TANZANIA

4.1. While the Trade Unions Ordinance, Cap. 381 provides the current lawgoverning trade unions in Tanzania, the Trade Unions Act, No. 10of 1998 isintended to, inter alia, repeal and replace this Ordinance. Although the Acthas been enacted, it is yet to come into force, as the Minister responsible fortrade has not gazetted the operational date. Therefore given this unusualsituation the analysis hereunder of the law governing trade unions will bebased on both the Ordinance and the Act.

4.2. According to section 2ofthe Trade Unions Ordinance, Cap 381(here in afterreferred to as the Ordinance), a trace union,

means the specific union and either temporary or permanent, oftwenty or more employees or of four or more employers, theprincipal purposes ofwhich are under its constitution the regulationof the relations between employees and employers, orbetweenemployees and employees orbetween employers and employerswhetherthat combination would not, if this ordinance at the Trade -Unions Ordinance had not been enacted, have been deemed to havebeen enacted, have been deemed to havebeen unlawful combinationby reason ofsome one or more of its purposes being inrestraint oftrade:

Provided that such acombination ofemployees employed by the Government,or by any department, or service ofany international body or organisationoperating in Tanzania, of which Tanzania is a member, shall notbe deemednot to be a trade union by virtue only ofits being a combination ofpersonsemployed by or under the Government

Provided further that nothing in this Ordinance:(a) shall affect

(i) any agreement between partners as to their ownbusiness;

(ii) any agreement between an employer and thoseemployed by him as to such employment;

(iii) any agreement in consideration of the sale of thegoods, will ofa business, orof instruction in anyprofession, trade or handcraft;

(b) shall preclude any trade from providing benefits for itsmembers.

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4 3 This definition is in some particulars different from the one contained in theTrade Unions Act, 1998 herein referred to as the Act. The differences are thatthe concept of the Specified Union brought in by the National Union ofTanzania Workers Association (NUTA) Act, 1964 and sub- proviso (a) (1)have been abandoned by the Act. In addition the Act has re-numbered theprovisos as sub-sections (2) and (3) and added asub-proviso (3)(b) which ineffect provides that nothing in the Trade Unions Act shall preclude any tradeunion from providing benefits for its members.

44 The concept oftrade unions was introduced into Tanzania (then Tanganyika)through the enactment of the Trade Unions Ordinance, 1932 which followedclosely most ofthe provisions ofthe Trade Unions Acts of1871 and 1876United Kingdom and several other pieces of legislation which were enactedthereafter designed to control and regulate trade unions. The legislation ofthe Trade Unions Ordinance, 1932 followed on the heels of an emergingpermanent wage-labour. It was intended to avert the growth ofindependentradical workers movement by providing a legal mechanism by which thecolonial State would use to ensure that trade unions toe the line. The Statechose to practice akind ofenlightened paternalism to serve its own interests.

4 5 The Ordinance borrowed a lot from the English Acts. In addition to thedefinition ofatrade union italso took aboard the provisions designed tocontroltrade unions and those related to the civil and criminal liabilities of tradeunions. The vast powers of the Registrar ofTrade Unions on registration,control, cancellation ofregistration oftrade unions were adopted. The onlymarked difference was that while in the English Acts registration of tradeunions was avoluntary affair, the Tanganyika Ordinance provided the converse.Under s 6 ofthe English Acts registration oftrade unions was voluntary butSection 5ofthe Tanganyika Trade Unions Ordinance stipulated thatregistration of trade unions was compulsory and made non-registration acriminal offence. In addition under s. 18 such an unregistered trade union couldnot avail itself of the immunity provided by s.3 ofthe Ordinance. This had aconsequence ofmaking unregistered trade union vulnerable to the commonlaw illegalities such as conspiracy and restraints oftrade. It also made amemberofthe unregistered union who participated in its proceedings guilty ofanoffence (s.10).

46 Appeals lay to the Governor until the enactment ofthe Trade Union(Amendment) Ordinance, No.7 of1939 that changed the appellate authorityto be the High Court. Later the Trade Unions (Amendment) Ordinance, No.30 of 1941 introduced immunity oftrade unions from action intort for tortiousacts done infurtherance oftrade disputes. However, while allowing peacefulpicketing the Ordinance made it an offence to intimidate or to do any actcalculated to intimidate even if in furtherance ofa trade union. It introducedsuch awide definition ofintimidation and injury that even peaceful picketingwas arisky undertaking. In addition those participating in illegal strikes weresubjected to legal sanction.

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4:7. The state attempted to further control trade unions by enacting theTradeDispute (Arbitration and Inquiry) Ordinance, No. 11 of 1947 which providedfor a standing statutory machinery for tripartite conciliation and arbitrationof trade disputes which apart from trade unions, involved LabourOfficersand Arbitration Tribunal appointed by the Governor. This machinery, had tohave been fully utilised before any further industrial action could be taken.Though under the Act the Assumption was that the state wouldexerciseneutrality but inpractice it usually leaned towards the employers. Italsoenacted the Trade Disputes (Arbitration and Settlement) Ordinance, No. 43of1950, which introduced the concept of essential service for which aspecialprocedure for settlement of their trade disputes was put in place.

The procedure involved the use of the LabourCommissioner and a Tribunaland restriction ofthe use ofstrikes and lockouts by making them illegal unlessthe two stage statutory dispute settlement machinery was exhausted. Bymaking strikes illegal inessential services, like harbours,railways,telecommunication and posts, and providing mandatory arbitration the statemanaged to divideworkers. All thisportrayed the real intention of thecolonialstate to hinder trade union initiatives.

4.8. The Trade Unions Ordinance, 1932 was repealed and replaced by anothersuch Ordinance of 1956. Though the intention ofthe change was recorded asto ensure that trade unions continue todevelop andestablish themselves on asound basis, the real aim was to provide provisions for more state control oftrade unions.

More conditions for registration andcompliance of trade unions wereprescribed and theRegistrar was given more power to exercise control andsupervision over unions in areas of funds, appointment of officers and rulesof a union. All this portrayed a wolfina sheep s skin. The real intention ofthe colonial State was to keepunder leash trade union activities.

STATUTORY TRADE UNIONS

4.9 When mainland Tanzania gained independence the wave of strikes did notabate. Through strikes, workers continued to demand for higher wages andto oppose oppressive management. The Tanganyika Federation of Labour(TFL) which was a trade union perexcellence registered under therelevantlaw had participated in the nationalist struggle for independence in partnershipwith Tanganyika African National Union (TANU). Political leaders also hadin turn fought besides TFL and other trade unions against the colonialgovernment onitscontrol over trade unions. However, immediately thereaftera serious cleavage developed between the government andTFLnotwithstandingthat the government team includedtested trade unionistslikeMr. Rashid Kawawa and Mr. Michael Kamaliza. The contention was especiallyover two major issues, i.e. citizenship and africanisation. The union-partyalliance was transformed into a union-party rivalry.

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The government sought for ways to bridge this rift in order to reduce strikesand bring the trade union more under its control. Hence the Trade UnionOrdinance, Cap. 381 was heavily amended by the Trade Unions Ordinance(Amendment) Act, No. 51 of 1962. The amendment resulted in giving morepower ofcontrol to the minister for Labour to appoint any federation ofworkers trade union asdesignated federation oftrade unions towhich everyregistered trade union was obliged to affiliate (ss.7, 13 and 14). Although thefederation was obliged to register every trade union, which applied forregistration, however it could not cancel or revoke membership ofaregisteredtrade union without the Minister sapproval. The Act also provided the Ministerwith powers over the finances ofthe designated federation over and abovethose already held by the Registrar.

4.10 The Minister had powers to direct the designated federation asto the purposestowhich its moneys were to be applied and the federation was obliged togive effect to such direction [s.41B (1)]. On his part the Registrar wasempowered to suspend officers ofthe federation ifhe was satisfied that itsfunds had beenused or were beingexpended in an unlawful manneror on anunlawful object [s.47 A(1)]. Under such financial situation the Registrar hadadditional powers to apply to the High Court for the appointment ofareceiverof the assets of the trade union [s.47B],

4 11 In addition the Trade Dispute (Settlement) Act, No. 43 of 1962 repealed andreplaced the Trade Disputes (Arbitration and Settlement) Ordinance, Cap.296. Itwas enacted toset up a standing industrial dispute settlement procedureand machinery involving negotiation, conciliation and-arbitration. The Actobliged trade unions and employers to exhaust the machinery before theycouldresort to strikesor lockouts. It madeparticipation in strikes andlockoutsanoffence unless theconditions provided were exhausted. This Act was lateramended by Trade Union and Trade Disputes (Miscellaneous Provisions)Act, No. 64 of 1964 and the Trade -Disputes (Settlement) (Amendment) Act,No.'47 of 1965. It was however repealed and replaced bythe PermanentLabour Tribunal Act, No. 41 of1967, which established the Permanent LabourTribunal for, inter alia, the settlement of industrial disputes.The latterActwasitselflateramended changing theTribunal into anIndustrialCourt by the Industrial Court ofTanzania Act, No.3 of 1990.

4.12 As Act No. 43 of 1962 did not cover government employees; correspondinglythe Civil Service (Negotiating Machinery) Act, No. 52 of 1962 (Cap. 484)and the Local Government Service (Negotiating Machinery) Act No. 66 of1963 (Cap.542) were enacted to cater for employees ofthe central and localgovernment respectively. The latter Act was initially repealed and replacedby the Local Government (Negotiating Machinery) Act, No. 11 of 1982, whichinturn suffered amendment by the Local Government Laws (Amendment)Act,No.8 of 1992.

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4.13 Due to trade unions strong opposition to the Trade Disputes (Settlement)Act, No. 43 of 1962, the Trade Unions (Revocation of Special Powers) Act,No. 44 of 1962 was enacted. It revoked the powers ofthe Minister to givedirections toadesignated federation astothepurpose to which funds receivedshall be expended. Meanwhile the Tanganyika Federation ofLabour (TFL)was designated;

The Tanganyika Federation ofLabour ishereby appointed, with effectfrom 24th August 1962, to be the designated federation for the purposesof the Trade Unions Ordinance.

This cooled thetempers of TFL leadership.

4.14 However, the TFL hostilities toward the government subsided only for awhile.It erupted seriously in January 1964 when the President announced that thegovernment was toabolish racial distinction in recruitment for jobs, trainingand promotions. Thereafter followed the army mutiny, which, itwas claimed,hadthe support of someof theTFLleaders. This led to the downfall of TFLassome of its leaders were detained and on 21s1 February 1964 the governmentbanned it. With the total eclipse ofTFL this country witnessed the formationand development ofmonolithic statutory trade unions under firm state tutelage.

4.15 The National Union ofTanganyika Workers (NUTA) was instead establishedby the National Union ofTanganyika Workers (Establishment) Act No. 18 of1964 (Cap. 555) dissolving TFL and its member unions and placing the labourmovement under the care and control of the government and TANU. Thisbrought toan end the autonomy of trade unions against ILO Conventions.Though itwas required to promote the policies ofand encourage its memberstojoin TANU thenew union was also assigned thesame dominant role of itspredecessor, TFL, i.e. the task ofprotecting and improving the wages andworking conditions of the Union members through collective action. In 1979NUTA was replaced byJumuiya yaWafanyakazi wa Tanzania (JUWATA)established by theJumuiya ya Wafanyakazi waTanzania Act, No. 24of 1979and followed in 1991 by the Organisation ofTanzania Trade Unions (OTTU)which was established by the Organisation of TanzaniaTrade UnionsAct, No. 20 of 1991 Section 4 thereof stated:

4(1) OTTU shall be thesole trade union body representative of allemployees in the United Republic.

(2) OTTU shall, with effect from theeffective date, bedeemed to beatrade union and the Registrar shall, upon appropriate application beingmade, register it inthat behalf under the [Trade Unions] Ordinance.

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4 16. In 1962 also a check-off system with regard tocollection of union dues wasintroduced by legislation, through section 13 ofthe Trade Unions Ordinance(Amendment) Act No. 51 of1962 (which amended section 52 ofthe principalOrdinance). The check-off system was further concretised in 1982 by theJumuiya ya Wafanyakazi wa Tanzania (Amendment) Act, No.l of1982 (s.7A).At the same time service charge was introduced (s. 78). These provisionswere reproduced in the Organisation ofTanzania Trade Unions Act, 1991,(OTTU)(ss. 11,12 and 13). The Commission feels that these provisions werenot necessary for vibrant trade unions do not require state tutelage.

4.17. Equally, these statutory trade unions can not be said to have been true tradeunions since they were not established by the workers themselves. The rightto form organisations is based on that right ofassociation and is fundamentalamong trade union rights. The exercise ofthis right depends on three aspects;the absence of discrimination amongthoseentitledto the rightof association,the absence ofaprerequisite authorisation to establish such organisations andthe freedom ofchoice with regard to membership ofsuch organisations. Article2 ofthe International Labour Organisation (ILO) Convention, 1948 (No.87)states;

Workers and employers, without distinction whatsoever, shall have the rightto establish and... to join organisations of theirownchoosing...

4.18 Furthermore, Article 5 thereof provides the right ofworkers and employersorganisations to establish and to join federations and confederates. AlthoughTanzania isyet to become a signatory to the Convention, preparations areunderway to do so. At the same time the Convention still sets internationalstandards in trade union matters such that it is appropriate to use it as ayardstick in assessing domestic legislation.

4.19. The right to organise freely includes the right to express opposition tooppression and other undemocratic practices including strikes. In themanifestation of this right there should be no interference not even by theState. Therefore, the statutory trade unions violated the Constitution ofTanzaniaandotherrelated international conventions. The Commission supports thedemise of the Trade Unions Ordinance under the Trade Unions Act, 1998.

FREE TRADE UNIONS

4-20 The concept offree trade unions is an international phenomenon emanatingfrom the concept ofhuman rights. The UN has however adopted standardsand principles also governing labour matters, including trade union rights.Hence, the Universal Declaration ofHuman Rights, 1948 provides that everyone has the right to freedom ofpeaceful assembly and association (Article20.1), the right of a person not to be forced to belong to any association

7Government Notice no.35 1 of 1962.

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(Art.20.2) and the right to form and join atrade union for the protection ofhisinterests (Article 23.4). These rights are also contained in Articles 10 and 11of the OAU Charter onHuman and Peoples Rights, 1986. In addition theInternational Covenant on Economic, Social and Cultural Rights, 1966 andthe International Covenant on Civil and Political Rights, 1966 set forth rightsand freedoms which are essential to free exercise oftrade union rights. Thecovenants, which entered into force in 1976, contain provisions concerningthe rightto form unions andthe right to strike.

4.21. The United Nations does not deal directly with labour matters assuch insteadaccording to'an agreement concluded in 1946 with ILO it recognises thatbody as its specified agency in this area with responsibility for takingappropriate measures to achieve the objectives laiddown in its Constitution.Therefore the international sources oflaw relating to trade union rights isbasically the International Labour Organisation (ILO) Conventions and otherinternational instruments. Theundamental instruments are the Freedom ofAssociation and Protection ofthe Right to Organise Convention, 1948 (No.87) and the Right to Organise and Collective Bargaining Convention, 1949(No.98) which together constitute the basic instruments governing freedomofAssociation. Tanzania has already ratified both Conventions. Theseinternational instruments set international standards, which canbe used togauge and improve the state ofdomestic legislation ofa country, even whereit has not ratified them.

4.22. The right to establish organisations provided by Article 2 ofConvention No.87 is the fundamental among trade union rights and itis the essential precondition without which otherguarantees enunciated in Conventions No. 87and 98 would be obsolete. Article 3ofthe same Convention, which guaranteesthe functioning ofworkers and employers organisations by recognising fourbasic rights:(i) the freedom to draw their constitution and rules,(ii) to elect their representatives in full freedom,(iii) to organise their administration and activities and(iv) to formulate their programmes without interference by the public

authorities.

4:23. However, since Art. 8ofthe Convention provides that exercising.These rights organisations shall respect the law ofthe land provided that itshall not be such as to impair nor applied to impair the guarantees providedfor in the Convention. Therefore, although there should be complete tradeunion autonomy, the State cannot refrain from all interventions since it mustat least ensure that trade unions carry ontheir activities within the limits ofthe law. In this respect however national legislation should only lay downformal requirements as regards trade union constitutions, such constitutionsand rules should not however be subjected to prior political approval at thediscretion ofthe public authorities. Legislation should be designed to ensuresound administration and prevent legal complications.

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4.24. States are free toprovide such formalities iftheir registration appear appropnateto ensure the normal functioning of organisations. National regulationsgoverning the constitution of organisations are therefore not in themselvesincompatible with the provisions ofthe Convention, provided that they do notimpair the guarantees granted by that Convention. Also exemption in the rightto form trade unions is provided inArt. 9oftheConvention that permits statestodetermine theextent to which theguarantees provided forin theconventionapply to thearmed forces and thepolice.

4 25 These rights are also contained in the Constitution ofTanzania. Articles 18and 20 provide freedom ofopinion and expression and person sfreedom ofassociation respectively. The freedom ofassociation include the freedom tofreely and peacefully assemble, associate and co-operate with other persons,and more specifically to form or join associations or organisations formed forthe purposes ofpreserving or furthering the person sbeliefor interests or anyother interests. Intrade unions this also means the right tocollective bargaining.

4 26 The enactment ofthe Trade Unions Act, no. 10 of 1998, which has the effectof inter alia, repealing the OTTU Act, 1991 has brought back the concept offree trade unions. OTTU meanwhile transformed itself into the TanzaniaFederation ofFree Trade Unions (TFTU) though it isnot clear under whichlaw it is operating. For there is no amendment to the OTTU Act giving effectto the change ofname nor is the new federation registered under the TradeUnion Ordinance. Nevertheless, TFTU has invigorated the formation ofnumerous trade unions as its affiliates. The Commission isofthe opinion thatit should bemade clear under what law TFTU is operating forotherwise it isoperating illegally much to the disappointment ofmany trade unions deemedto be affiliated to it.

ANALYSIS OF THE ORDINANCE AND THE ACT

4-27 While the Ordinance represents the era ofstatutory trade unions the Act standsfor free trade unions. However aswill bedemonstrated hereinafter the dividingline is still fine. The fundamental departure rests in the Act abandoning thetrade union monopoly imposed by law as designated union which wasintroduced by the Trade Union (Amendment) Act, 1962 and thereafterperpetuated through the NUTA Act, 1964, the JUWATA Act, 1979 and theOTTU Act, 1991 as the Specified Union through the Ordinance. In discussingthe Ordinance the OTTU Act will feature prominently as according to s.l thereofit shall be read as one with the Ordinance.

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4.28. The Ordinance is divided into XI Parts containing 60 sections, while the Acthas XIII Parts consisting of88 sections. Part I ofboth legislation dealwithPreliminary matters constituting the title of the Ordinance and theActandinterpretation (ss.l and 2 respectfully). Part IIcovers the appointment ofaRegistrar oftrade Unions for both legislation and also Deputy Registrar inrespect ofthe Act (s.3), and other officers required toput into effect theprovisions ofthe Act. (s.4). Section 5provides immunity for any suit againstthe Registrar and all other officers on any act or omission in good faith in theexecution oftheir duties under the Act. This immunity is important to facilitatetheRegistrar and other officers to perform their functions without fear orfavour.

4.29. Part III ofboth pieces oflegislation deal with registration oftrade unions.The Registrar is obliged to keep and maintain aregister for the registration oftrade unions (s.6). Section 7ofboth legislation makes it compulsory for everytrade union to be registered within .hree months offormation before cominginto operation or for those registered under the previous legislation tore-register orbedissolved. The time frame fora branch ofa trade union is onemonth ofestablishment. Registration is made by application the Registrarmade in the prescribed form and containing prescribed particulars under s.8.

4.30. Before registration a trade union must comply with the requirements oftheOrdinance or the Act which include:

(i) to comply with the prescribed matters including to have constitutionand rules which under ss.33 of the Ordinance or 41of the Act shallprovidefor matters specified in the Schedule to the Ordinance or theAct,

(n) atleast twenty members ofan employees combination or associationorfour members for an employers have to sign the application forregistration,

(iii) furnish to the Registrar particulars ofofficers ofthe trade union,

(iv) where a trade union had been established beforetheAct deliveralso to the Registrar a general statement of assetsand liabilities of theunion

(v) where a trade union hadbeen established before theOrdinance orActfails to register within three months from thedate of commencementof each of the legislation or afterits formation whichever is the later.

4.31. Both sections 16 ofthe or the and 18 ofthe Act prohibit unregistered tradeunions from carrying on business. The penalty for defying the prohibition is afine ofup to shs. 500/-under the Ordinance orshs. 100,000/= under the Act

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4.32. Even OTTU though declared under s.4 ofthe OTTU Act as the sole unionbody representative ofall employees in Tanzania and deemed to be atradeunion on the effective date hadto register. Section 4(2) of the OTTU Actprovides that the Registrar shall register it upon appropriate application beingmade. The importance ofregistration for even adeemed trade union like OTTUwasdemonstrated in the caseof Zambia-Tanzania Road Services Ltd vsJ.K.Pallangyo (1982) TLR (C.A.) 24. In the case it had been argued in court thatsince JUWATA was inlaw deemed tobea trade union itcould operate withoutregistration. However the Court ofAppeal held that though in law JUWATAwas recognised to exist as atrade union itmust be registered under section 16of theTradeUnion Ordinance which prohibited it and its officers from actingfor itsmembers unless it was registered. Any purported acts of JUWATA infurtherance of the trade union before registration are in law invalid.

4.33. The fixing ofa minimum number ofmembers ofa union applying forregistration is not in itself incompatible with the ILO Convention No. 87.However, the number should be reasonable so that establishment oftradeunions is nothindered. The ILO Committee of Experts onApplication ofConventions held in its 1994 report that the requirement by section 418 ofLabour Act of 1990 ofVenezuela for twenty employees to establish a tradeunion and 40 occupational unions was not unreasonable. Ithowever consideredarequirement for 100 self-employed workers to establish an occupational,branch orsectoral union as too high. Section 7 ofboth the Ordinance and theAct meet the condition of reasonableness. Therefore, the Commission isconvinced the provision does not amount to an attempt to hinder formationof trade unions.

4 34 In the case of determining whetherto registera trade unionthe Registrarmaycall for further particulars (s.ll) and even require alteration ofthe name ofthetrade union where he considers it misleading or likely to mislead or deceive(s.12). Where the Registrar is satisfied he registers the union and issues acertificate, which is, unless withdrawn orcancelled conclusive proof ofregistration (s.10 ofthe Ordinance and ss. 10 and.13 ofthe Act.).

4 35 The Registrar may refuse registration ofa trade union on several groundsenumerated in sections 14ofthe Actand 13, of theOrdinance. These groundsinclude where theunions constitution isunlawful orused forunlawful purpose,the principal objects are not in accordance with those ofatrade union, it is anorganisation consisting ofpersons engaged in more than one trade and itsconstitution does not contain suitable provisions for theprotection of theirrespective trade interests and its accounts are not kept properly. Under ss.15ofthe Ordinance and 16(1) oftheAct, anappeal against refusal ofregistrationof a trade union or orders lies to the High Court whose decision under theOrdinance is final. The Act does notsospecify thefinality of theHigh Courtdecision thus leaving room for the possibility offurther appeal to the Court ofAppeal.

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4.36. The Commission considers that the requirements for registration of tradeunions is mandatory and a necessary formality so as to ensure normalfunctioning ofunions as long as this requirement does not violate the right oftrade unions to establish organisations. The Commission also notes that thefact that there is another trade union in the same establishment, whichsufficiently represents the interests of the proposed is a ground of cancellationor withdrawal of certificate of registration under ss.14 of the Ordinance and15 of the Act However this reason has not been provided as a ground forrefusal of registration of trade unions. This appears strange since under thepresent situation a trade union may be registered today and its certificate ofregistration cancelled tomorrow because of the most representative trade unionprinciple. Therefore either the principle is also applied during registrationotherwise it should be removed altogether from the legislation, as its presentuse does not adhere to good management of trade unionism.

4.37. A pertinent issue here is whether the principle should be retained at all. Theintention of the principle is not to form indirect trade union monopoly or tostifle the workers and employers right to voluntarily formorjoin tradeunionsof their choice. Ratherto forge strongunionswhich can best represent theinterests of workers andemployers interests indeedthis isto their advantageto avoid having too many weak and competing trade unions, which mayprejudice their interests. Unitycreates strength andgreaterunity means greaterstrength.

Multiplicity may breed inefficiency and duplicity of efforts while rivalryand competition between unions can promote enthusiasm and a better servicefor members, it can alsoprovokeresentments andhostilityand thesymptomaticdermacation of disputes which give trade unionism as a whole a bad name.The services providedby a unionto its members are invariably limited by theextent of its financial resources and horizons. Bigger unions can co-ordinatediverse pressures to better purpose. This demonstrates that the applicationof the principle actually advances the course of trade unions.

4.38. Given this position the Commission would not quarrel with the applicationofthe principle as a reason for refusal of registration as well as for withdrawalor cancellation of the certificate of registration. This position has been takenknowing that the use of the principle does not contravene the constitutionalrights of the workers and employers.InAgasha& anotherv.The RegistrarofTrade Unions(1973) E.A297(Kenya)the court discussed the issue of the most representative trade union containedin the Trade Unions Act of Kenya. It was held that although the Constitutionprotects the right to belong to a trade union the provision for refusal ofregistration where there are other registered unions which sufficientlyrepresents the whole or substantial part of the interests of the proposed union

is not utra vires of the constitution. However, the Commission recommendsthat recognition of the most representative trade unions must be determinedon objective, pre-established and precise criteria to avoid possible bias andabuse.

4.39. The Registrar has also the mandate to withdraw or to cancel the certificateofregistrationunder ss. 14of the Ordinanceand 15 oftheAct on the followinggrounds:(a) on request by a trade union upon its dissolution,(b) If he is satisfied that:-

(i) the certificate was obtained by fraud or mistake,(ii) the Constitution of the union or its executive committee is unlawful,(iii) the union is used for unlawful purposes,(iv) the union has contravened any provision of the Ordinance or Act or

regulation, (which under the Ordinance specifically includes theunion not keeping books ofaccounts as prescribed by the legislationor after registration becoming a branch of an unregisteredtrade union),

(v) the funds of the Union are being spended unlawfully,(vii) the union has ceased to exist(viii) trade union has fewer members than a similar one in same

establishment

4.40. In addition, OTTU s certificate of registration may also be cancelled wherethe Registraris of the opinionthat the specifiedunionhas failedto satisfactorilycarry out its objects or its operation is no longer in the public interest. Unders. 7(3) of the OTTU Act the Registrar should not cancel the registration onlyon omission from its constitution of any matter required to be contained inthe rules ofa trade union or the fact that it is not an organisation consisting ofpersons engaged in one trade, failure to meet a requirement in changing ofname or notification of dissolution. This is but a further demonstration ofprotection and privileged position of a statutory trade union.

4.41. In respect of s.14 (b)(iv) of the Ordinance and s.15 (b) (iv) of the Act it washeld in the Unguja Pemba Transport Workers Union v. The Registrar ofTrade Unions (1958) EALR 722 that failure to submit accounts by anindividual responsible for submitting accounts of a trade union contrary tos.21 of the Trade Union Decree, 1941 of Zanzibar is a failure by the unionitself. Therefore cancellation of certificate of registration of the trade unionon that ground was found to be proper. In this case the treasurer of the tradeunion had failed to submit accounts to the Registrar of Trade Unions asrequired by the provision of the Trade Unions Decree, 1941 which alsoempoweredthe Registrar in such a case to cancel the certificateof registrationof the union.

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4.42. However,before such withdrawal or cancellation the Registrar is required togive a two months (under the Ordinance) or thirty days (under the Act) priornotice to the trade union concerned. Where such union has failed to showcause or failed to give satisfactory grounds the Registrar may proceed withsuch cancellation and inform the union the reasons thereof.

4.43. According to s.9 (2) of the OTTU Act before cancellation of OTTU theRegistrar has to consult all such parties he deems necessary in the publicinterest and obtain prior approval of the Minister by order published in theGazetteorderingthe cancellation of OTTU. The Registrar shall also specifyin the order another trade union which is going to step into the shoes ofOTTU. Three months after his order the Minister has to present the reportthereof to the National Assembly and specify a substitute trade union whichshall operate instead of OTTU and carry on trade union monopolism.

4.44. Surprisingly Section 14(7) of the Ordinance also provides that the Registrarcan cancel the registration of a Specified Union only on the direction of thePresident. It is not clear at what stage the Presidential direction should besought and obtained. The two sections need to be rationalised ifthe Ordinancecontinues to exist.

4.45. Sections 17 of the Ordinance and 18of the Act provide consequences ofcancellation ofa certificate of registration ofa trade union. Such a trade unionbecomes dissolved making it lose the attributes of a registered trade union.Consequently its funds are disposed of and the registration certificate has tobe delivered to the Registrar for cancellation. In such circumstances, its officersand members cease to enjoy the rights and immunities, or privileges of aregistered trade union. Also no person may take part in its management or acton its behalf except for defending or taking legal action for dissolving theunion and disposing the funds thereof. With respect to OTTU the situation isdifferent. The substitute trade union takes over rights and obligations of OTTUincluding legal proceedings, leaders and employees (ss.16-18 of OTTU Act).

4.46. Contravention of any of these conditionalities is an offence, which onconviction attracts a punishment of a fine not exceeding shs. 1,000/= underthe Ordinance or shs. 100,000/= under the Act. An appeal against cancel lationof registration and suspension ofa trade union lies to the High Court where inline with the rule of the law the Registrar is also entitled to be heard under s.15 of the Ordinance and s.16 of the Act. The decision of the High Court isfinal.

4.47. Thewidediscretionary powersof the Registrarare also displayedin suspensionof trade unions.While awaitingcancellationthe Registrarmay prohibita tradeunion, a branch thereof or federation from carrying on its activities underss.19 of the Ordinance and 20 of the Act. According to s.20 of the Ordinanceand s.21 of the Act the Registrar may also suspend for up to six months a tradeunion or trade unions which is or are used for purposes prejudicial to theinterestsof the security or public order ofTanzania. Beforedoing so he has to

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consult with the trade union or the federation. The Minister may vary or revokethe order.

4.48 Under s.20 the Registrar is also empowered to suspend or vary such order ofsuspensionofa branch of a trade union after consultationwith the trade union.Even though the Registrar is required to consult with officials of a trade unionin case of a branch or federation where the suspension is to affect a tradeunion the ultimate decision lies with him. The Commission is ofthe consideredviewthat the Registrarshouldretain the powersof cancellationand suspensionof a trade union or federation to ensure that there is fair play in the activitiesof trade unions federations by levelling the playing field.

4.49. One of the fundamental rights ofworkers and employers organisations is todraw up their constitutions and rules and to organise their administration andactivities. Part V ofthe Ordinance and Part VI ofthe Act deal with constitutionand rules of trade unions. When it comes to formation of a federation the Actalso dedicates a whole Part V for that in addition to the provisions containedin Part VI. A person aged fourteen years may be a member of a trade unionunder s. 24 of the Ordinance (s.32 of the Act). Members and officers arerestricted to persons engaged or employed in an industry or occupationconnected directly with the union, The Commission is in agreement with theILO Committee of Experts that this restriction is acceptable as long as it isappliedto first-level organisations, whichare freeto establish inter-professionalorganisationsand tojoin federations or confederationsin the formand mannerof their choice.

4.50 In addition, not more than one officer of a registered trade union, exceptwith the Registrar s permission, may be a person not engaged in the industryor occupation related to the union [Sections 25(2) of the Ordinance and 33(2)of the Act], This provision though intended to ensure that trade union officersare persons conversant with and who have a genuine interest with the industryor occupation, it has also a negative part. The restriction may have the effectof preventing qualified persons such as pensioners from carrying out tradeunion functions thereby depriving the union the advantages of theirexperience and expertise especially when internal resources are limited. TheCommission recommends also that the Rcgistar s powers under the sectionbe retained.

4.51. Furthermore, sections 25(3) of the Ordinance and 33(4) of the Act also prohibitan officer of one registered trade union from holding such similar office inanother trade union. However, the Registrar has powers to permit a secretaryof one trade union to be a secretary of another trade union [ss.25 (3) of theOrdinance and 33(5) of the Act A person convicted of any crime involvingfraud and dishonesty is not qualified to be an officer of a trade union untilthree years after completing his sentence. At the same time the Registrar maydisqualify a person from holding the office of secretary or treasurer of aregistered trade union who is not qualifiedenough to perform the duties of his

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office. The Registrar has powers to call for information from a trade union to• ensure that these provisions are complied with.

4.52. Section 26 of the Ordinance restricts voting members of a trade union topersons employed or resident in Tanzania(s.34 of the Act). A registered tradeunion may change its name if so consented by majority members voting ina meeting calledand conducted according to the rules of the union (ss.27 ofthe Ordinance and 35 of theAct). Boththe Ordinance and theActprovide theright of trade unions to amalgamate, form federations and affiliate. Two ormore registered trade unions may amalgamate or form a federation. Adecisionthereof has to be reached by each union through a secret ballot in which atleast fifty percent of members entitled to vote at the meeting recorded andthose preferring theamalgamation exceed bytwenty percent thevotes againstunder section 28 of the Ordinance and 36 of the Act. However, the formationof a trade union federation undertheAct requires onlya majority voteof eachconcerned trade union at a general meeting or delegates meeting summonedbyathree months notice. The notice must inform all themembers theproposedresolution and hasto be servedalsouponthe Registrar (s.23 of theAct).Whilethe Ordinance does notprescribe formatters of notice to thegeneral meetingthe Act is very specific.

4.53. Section 28of theOrdinance is nevertheless notalways operative inrespect ofemployees federation since it is provided by s. 4(i) of OTTU Act that OTTUshall be the sole trade union body in Tanzania. Notwithstanding that s.29ofthe Ordinance requires that the Registrar be appraised bynotice in writing ofamalgamation and formation of federation for registration purposeswithinone month of such occasion.

4.54. In the case of amalgamation the procedure under s. 36 ofthe Act is almost thesame as under the Ordinance as explained above. The only difference is thatin the lattercasea threemonths notice is required to be givento the membersand to the Registrar while no particular time frame is provided in the case ofamalgamation or formation of a federation under the Ordinance.

4.55. In respect of affiliation, the Ordinance does not provide the procedure, as isthe case under s.24 of the Act. Under this provision when trade unions areinvolved in formation of or affiliation with consultative or similar bodies theconsentneededhas to be reacheddemocratically by a simplemajority voteata general meeting or a meeting of delegates after a fourteen days service ofnoticeof the proposed resolution. The Registrarhas to benotifiedofformationoraffiliation within sixty days of such event. In the same vein the Registrarmust be notified also of affiliation within three months under s. 31 of theOrdinance or one month under s.24 of the Act. The situation is different information of or affiliation with consultative or similar bodies. In such cases

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the time span within which to notify the Registrar is sixty days (s.28 of theAct).

4.56. The Registrar retains the power to declare all these union actions invalid.After the trade unions decision to change of name, amalgamate, affiliate orform a federation of trade unions subsequent approval has to be obtainedfrom the Registrar for these actions to take effect. Therefore notice of suchchange of name and amalgamation has to be given to the Registrar forregistration within onemonth of such occasion (ss.28 and29of theOrdinanceand 36 and 37 of the Act). The Registrar may refuse such registration if theproposed name is identical with that of another registered trade union orresemblesit such as to be likely to deceive the public or where it is misleading(ss. 29 of the Ordinance and 38of theAct). He also haspowers unders.29 ofthe Act to declare the affiliation invalid if satisfied that the consultative orsimilar body does notpursue objects ofa trade union otherthantheresolutionof relations between employees and employers, employees and employees oremployers and employers, or the procedure for obtaining consent frommembers were not adhered to.

4.57. In dissolution ofa trade union the Registrar has to be notified within fourteendays (ss. 36of the Ordinance and44 of theAct). According to s.39 of theActwhere the dissolution relates to a branch of a trade union the Registrar has tobe notified within one month. In such a case the Registrar will only considerwhether the rules of dissolution have been followed in reaching the decision(ss. 36 of the Ordinance and 44 of the Act).

4.58. Registration of change of name does not change therightof obligation ofsuch trade union. Equally, amalgamation or federation of trade unions doesnot prejudice the rights or obligations of either or any of the unions (ss. 30 ofthe Ordnance and 38 of the Act). Proceedings can proceed in the formername or initiated in the new name for matters that occurred before the changeof name. Appeal lies to the High Court on the Registrar s refusal to recordsuch change of name or amalgamation.

4.59. Section 30 prohibits a person who has been a memberof the executivecommittee of any trade union the registration of which has been cancelledundertheAct from holdingoffice in or beingemployed by a consultative or asimilar body without thewritten permission of theRegistrar. TheCommissionrecommends that the powergiven to the Registrar in this sectionshouldberetained. Againas recommended elsewhere hereinabove regardingmattersof management of a trade union, the Registrar should continue to oversee theemployment of certain categories of trade union staff.

4.60. Sections 54 to 60 of the Act, Trade Unions (Collection of Union Dues)Regulations, No. 708 of 1962 and the OTTU Act deal with the check-off

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system, i.e. trade uniondues, union servicecharges, levies and subscriptionsand their deductions from the salariesof members or employees wages andpayment to the trade union. The Regulations however do not cover unionservice charges. In thecaseof theOrdinance, itprovides powers ofa designatedtrade unionto direct that part of uniondues be paid to the federation (s.41 A).In addition, Regulation No.708 of 1962made by the Minister under s.52 dealalso with deductionand payment ofunion dues by employers.Also under theSchedule to the Ordinance a trade union is also required to make rules for therate of contribution for any member of a trade union.

4.61. Under the Act deduction of union dues from salaries of union memberssalaries depends on the member/employee s written consent after which theGeneral Secretary orders the employer thereof to effect deductions and submitthe sameto the tradeunion (s.55). Thisnoticemay be givenby publication ina Government Gazette. Under s.52 (2)(hh) of the Ordinance the Minister isrequired to make Regulations regarding such collection of uniondues by anemployerwho employsten or more union members from such employees.

4.62. There is also union servicechargepayableeach month by every non-memberemployed in a business related to the trade union. The charge isdetermined by trade union members and approvedby the Minister (s.56). Itapplies toa business where fifty or morepercent of theemployees aremembersof the union. This is the casewith the OTTU Act.While it may be questionedwhy non-union members should be required to contribute to a trade union, itis also true that the samepersonsbenefit from gains, which may result fromefforts taken by the trade union. The Commission however recommends thatunion service charges bededucted from thenon-union members salaries onlyon their consent in order to protect their constitutional rights.

4.63. Fromss.42-47B of the Ordinance and ss.65 to 73 of theAct the Registrar smandateto control and superviseunions through their funds is evident.Wherethe Registrar is of the opinion that the funds of a trade union are beingmismanaged he shallcall forandapproveexpenditure according to submittedaccounts. Trade Unions are required to keep books of account, treasurer torender accounts to the members or the Registrar, secretary of a registeredunion or federation to furnish annual returns and auditors reports (s.68) everymember to get an audited general statement of annual accounts. Books ofaccounts and documents shall be open for inspection. The Registrar maycallfor detailedaccounts, suspendofficers whereaccounts are not kept properlyor funds are expended unlawfully subjectto appeal to the Minister, and mayapply for appointment of a receiver by the High Court.

4.64. Under sections 46 of the Ordinance and 70 of the Act it is an offence toobstruct the Registrar from inspecting the accounts of a trade union. Underthe Ordinance the offenceis punishable with a fine not exceeding

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shs. 1,000/= or imprisonment for a term not exceeding six monthsor bothsuch fine andimprisonment. However under thecase of theActtheconvictedperson is liable to a fine not exceeding shs.50,000/= or to imprisonment fornot more than six months or to both fine and imprisonment.

4.65. While Part IX of the Ordinance covers only regulations, Part XIII of the Actdeals also with repeals which in the former legislation are among mattersincludedin miscellaneousprovisions (part XI). Underss. 53 of the Ordinanceand 87 of the Act the Minister may make regulations for carrying out theprinciples, and provisions of thelegislation, inter alia, inmatters enumeratedin these sections. It is noted that the Minister has not made regulations underthe Act, as it has not been operationalised.

4.66. Offences andpenalties are the purview of PartX of the Ordinance andPartXII of the Act. The court is obliged when it considers necessary to order aperson todeliver tothetrade union orfederation theproperty ormoney whereit has been provedthat he has misused the property or money(ss.53 of theOrdinance and 84 of theAct). The court can only entertainthe complaint ofsuchmisuseif filed bytheRegistrar ora memberof the trade union concerned.Default of the court s order attracts a fine not exceeding shs. 1,000/= underthe Ordinance or shs.50, 000/= under the Act.

4.67. However it is a defence for an alleged default officer to prove that he hadreasonable cause to believe that a competent and responsible person wasresponsible forand was in a position to discharge that responsibility (ss.54 ofthe Ordinance and 85 of the Act).All offences under the legislationare triablebythe Court of Resident Magistrate (ss. 55 of the Ordinance and 86of theAct). The Commission has noted elsewhere that apart from the Registrar amember ofa trade union or a federation may complain to the Court on misuseof trade union fund under s.84.

4.68. Part XI ofboth the Ordinance and the Act stipulate miscellaneous provisions.In this Part the Ordinance includes matters of repeal, which are part of PartXIII of the Act. Sections 78 of the Act and 56 of the Ordinance provide that amember of a trade union or federation under the age of fourteen years maynominate a person notbeinganofficeror servantofa trade unionor federation,unless a close relative, to whom the money due to the member may be paid tohim(nominee) upon death of the member. Thisprovision appears to be incontradiction with s.4 ofboth legislation, which indicates that the lowest ageof becoming a member of a trade union is fourteen years. Therefore it is notpossible to have a member aged below that age.

4.69. However, the marginal note reads nomination by a memberunder sixteenyears. This introduces a possibility that therelevant age in reference on theother hand is below sixteen years and not below fourteen years. TheCommission recommends that the position be clarified and the necessaryamendments made in line with the side notes.

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4.70. Section 79 declares the inapplicability of the Companies Ordinance, theCo-operative Societies Act, 1991 and the Societies Ordinance to any tradeunionor federation. On the other hand sections 57Aof the Ordinance and 80of the Act declare that thePenal Code shall notprevent the collection ofsubscriptions by any person where he has been authorised in writing by atrade union or federation.

4.71. Where as sections 58 ofthe Ordinance and 81 ofthe Act provide for serviceoflegal process, section 82 prohibits certain persons from joining a tradeunionor federation, i.e., the Military Forces, the PoliceForceand thePrisonsServices whetherin the Mainland Tanzania or in Zanzibar. The wisdom ofthe latter provision is obvious for otherwise chaos and insecurity may occur ifmembers ofthose institutions were to participate in a strike called by theirtrade unions. This is in line with Article 9 of the 1948 ILO Convention whichleaves the determination ofguaranteeing the rights related to freedom ofassociation and the right to organise relating to the armed forces and the policeto national laws or regulations.

4.72. The Registrar is under sections 58 of the Ordinance and 83 of the Actobliged to issue notices in the Gazette onregistration, refusal orcancellationof registration, change of name or amalgamation and dissolution of a tradeunion orfederation. This obligation operates also in respect ofsuspension ofa union under section 21 of the Act.

4.73. Section 60 ofthe Ordinance repeals the Trade Union Ordinance Cap. 84 Inthe same vein section 88 ofthe Act is intended torepeal the Trade UnionOrdinance and the Organisation ofTanzania Trade Union Act, 1991 closingthe chapter of statutory trade unions. The Commission recommends thattheMinister should operationalise the Act and make the necessary regulations assoon as possible.

4.74. The Trade Union Act is certainly an improvement on the Ordinance especiallyon the right ofworkers to form federation ofunions. Although most oftheprovisions in both pieces of legislation are similar. The Act isdesigned toremove statutory trade union monopoly and to restore theright of workers toform and join trade union oftheir choosing. Increased pro-action is still requiredin translating workers and employers rights to establish organisations andmake sure they are managed by the workers and employers themselves freelywithout interference from the state machinery.

4.75. The Commission recommends the following:

I. The principle ofthe most representative trade union be applied alsoin ss. 13 of the Ordinance or 14 of theAct during registration andshould be determined on objective, pre-established and precise criteriato avoid possible bias and abuse

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2. Section 29(a) of the Act should be rationalised to reflect the realmeaning ofthe kind ofresolution ofrelations it is intended to becovered. Itwould appear that the resolution ofrelations referred to isnot only between employees and employers or between employersand employees for this is only repetitive but between employeesand employers, employees and employees oremployers andemployers.

3. Section 56 of the Act be amended to allow union service charges tobe deducted from non-union members salaries onlyaftertheirconsentin orderto protect theirconstitutional rights.

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CHAPTER FIVE

COLLECTIVE BARGAINING

5:1 Collective bargaining is defined as a process or method of setting wages andterms of employment by voluntary negotiation between trade unionsrepresenting employees, and employers or employers organisations. Theprocess isdescribed ascollective because workers are involved initasagroupand are represented by individuals chosen for that purpose. The process isbargaining because it involves giveand take andordinarily the making of acontract9

5.2. Theaim of collective bargaining is to facilitate the improvement uponminimum terms andconditions of employment where the employer canreasonably be expected to be in a position to make such improvement. InTanzania employees are organised in Trade Unions of varyingsizes in termsof membership while the employers are organised in Associations such asAssociation of TanganyikaEmployers (ATE), The TanzaniaAssociation ofParastatal Organisations (TAPO) TheTanganyika Association ofAgriculturalEmployers (TAAE).

COLLECTIVE BARGAINING IN PUBLIC SECTOR:

The Civil Service (Negotiating Machinery) Act No. 52 of 1962 Cap 484and The Local Government (Negotiating Machinery) Act, No.66 of1963.

5.3 Both the Civil Service and Local Government have collective bargainingmachinery forjunior staff. The Civil Service (Negotiating Machinery) Act,No.52 of 1962, Cap.484 and theLocal Government (Negotiating Machinery)Act, No.66 1963, Cap.542 set up collective bargaining machinery in the formofajointstaffcouncil anda national jointstaffcouncil, respectively, composedof representatives from Government and the trade unions. Section 3 of theCivil Service (Negotiating Machinery) Act, Cap.484 provides for thecomposition of the joint staff council thus:

3. (1) There shall be established for the purposes of this Act a Joint StaffCouncil which shall consist ofa Chairman, a Vice Chairman and suchnumber of other members, being not less than ten and not more thantwenty, as the Minister may prescribe.

(2) The members of the Councilshallbe appointed by the Minister frompersonswhohavebeen nominated by the Permanent Secretary or thetrade union, as the case may be, and who are either civil servantsor officers of the trade union.

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5.4. The objects ofthe Council adequately provided for under section 4,whichstates:

4. Theobjects of the Council shallbe within the limits of itsfunctions, to secure the greatest measure of cooperationbetween the Government, in its capacity as an employer, andjuniorcivilServants, to provide machinery for dealingwith the grievances ofjuniorcivil servants andto enableconsultation to take place in maters affecting the efficiencyand well being of the Civil Service.

5.5 Provided that the Chairman of the Council shall be one of the personsnominated bythe Permanent Secretary and the Vice-Chairman shall be one ofthe persons nominated by the trade union.

5.6 Section 5 of Cap484provides for functions of a joint staffcouncil which arethe following:

(a) tonegotiate onmatters relating tothe terms and conditions of serviceof juniorcivil servants or any class, grade or group thereof.

(b) to discuss and submit advice to the Government on any matteron which the Government seeks the advice of the Council;

(c) to discuss and make recommendations to the Government on anymatter concerning the interests, well-being and efficiency of juniorcivil servants, and

(d) generally to assist in the furtherance of good relations between theGovernment and junior civil servants.

5.7 Reading these statutes it is observed that they deal exclusively with juniorcivil servants andjunior local government servants, leavingotheremployees in thesupervisory and managerial cadres with no negotiatingmachinery. Theobject of theAct is clearly stipulated to deal with grievancesof juniorcivil servants andto enable consultation to takeplace in mattersaffecting the efficiency and well being of the civil service.

5.8. However, by virtue of sections 17Aand 17B, 19A, 19B, of the LocalGovernment service (Negotiating Machinery) andCivil Service (NegotiatingMachinery) Acts, allsenior local government officers and senior civil servantsare prohibited to go ortake part or incite any junior officer in a strike. Bothjunior and senior officers compose the civil service while strike iscession ofwork to compelemployerto fulfil terms of employment contract.

5.9 According to Article 4 of the Convention No 98,on the Right to OrganiseandCollective Bargaining of which Tanzania is a contracting party it isprovided that governments should take measures to encourage and promotethe full development and utilisation of machinery for voluntary negotiation

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between employers organisations and workers organisation with aview tothe regulation ofterms and conditions ofemployment by means ofcollectiveagreement. Reading through this articles together with articles 20 and 29(2)ofthe Constitution ofthe United Republic ofTanzania on freedom ofof'thelaw11 CqUal pr°teCtion under the law suffices to Prove inadequacy

5.10. Sections 5and 23 ofthe Industrial Court ofTanzania Amendment Act No 2of1993 require collective agreements to be submitted to the LabourCommissioner before being forwarded to the Industrial Court1he ICT sfunction is to proceed to decide whether or not to register theC^Ta^ HSTect7r7<3) of the Civil Service (Negotiating Machinery) Act,Mff^SS Government (Negotiating Machinery) Act as amended byAct No.41 of1967 require asigned and recorded negotiated agreement to besubmitted to the Minister and the Minister to submit the same To the tribunalThe tribunal then refers it to the President. On receipt ofthe recommendationsof the fnbunal in respect ofany agreement the President is empowered todirect acceptance ofthe agreement with or without modifications or to reject,InSth Gme5' AnnieVo°'directi0n given b*the ^sident is final and bindingupon the parties/The Commission notes that the ICT srole in this respect if

peripheral. The Commission further observes that the President should not becalled upon to deliberate on ordinary matters ofwages and terms and conditionsof service. The collective agreement should only bind parties to it. In the case^n°X ,T Dt°Wn DlStrkt C°UnciI (1981> IRLR 340'L°rd Denning statedthat acollective agreement is an agreement made between an employersassoc.at.on ora single employer, on the one hand, and a trade union on theother, which as well as laying down the procedure which will governrelationship between the signatories, will also provide for the terms andconditions ofemployment ofthose covered by the agreement l0

hv^îSSi°n' thêfore'Ptoses that such agreement should be registeredby the ICT as an award and there should be no further reference to the PresidentInstead an independent board should be established to deal with matters 'concerning terms and conditions ofciv.l service. It is further proposed thatthe joint staffcouncil should be restructured so that its powers are extended tocivil servants in supervisory and managerial levels.

C^frfA°VtiSi0nS^f SCCti0nS 23(1)' 23(3)(C) and 39(?Xc) of the IndustrialCourt Act give the court power to refuse to register acollective agreement ifthe agreement is not in conformity with the government economic policy1his is an important check because it ensures that agreements that are injuriousto government economic policy are not legalised

5.11.

5.12.

'Mills, D.C (1989) Labour Management Relations p.215

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5 13 The Commission notes with interest that, according to the law the parties' ' may apply the agreement even though it has not been registered.

However, as ageneral rule, the provisions requiring prior approval of acollective agreement for it to come into force are only compatible with theRight to Organise and Collective Agreement ILO ^vention no.98 ,, .-provided they merely stipulate that approval may be refused if the collectiveagreement has aprocedural flaw or does not conform to the minimum standardslaid down by relevant labour legislation. On the other hand, iflegislational ow authorities full discretion to deny approval or stipulates that approvalshould be based on criteria such as compatibility with the general or economicpolicy ofthe government or directives on wages and conditions ofemployment,it in fact makes the coming into force of the collective agreement subject topr or approval, which is aviolation ofthe principle ofautonomy of the partiesand freedom of association. Furthermore, the commission recommends thatwhere grievances arise in registration ofanegotiated agreement toe.shouldbe room for appeal to the High Court. Therefore section 27' (1) (c) of ICT ActNo.41 of 1967 (as amended by Act No.3 of 1990) should be amendedaccordingly.

COLLECTIVE BARGAINING IN PRIVATE SECTOR:

INDUSTRIAL COURT OF TANZANIA ACT, NO. 41 OF 1967

5-14 The Industrial Court of Tanzania Act, (known as the Permanent LabourTribu^settlement Since 1967 the then Permanent Labour Tribunal Act wasamended[several times namely by Act No. 3lof 1970, ActNo. 18 of 1977 ActnT> 25 of1982 Act No. 3of 1990 and Act No. 2of 1993. However, all theseamendments did not address the issue ofprotection ofemployees or employersfrom non-junsdictional errors committed by the Tribunal and aterCourt) inmaking an award or deciding on matters referredto it. Act No 3of 1990 hadair-Singeffect on the Permanent Labour Tnbunal Act making the Tribunalan Industrial Court and providing for a variety ofmatters.

515 There was afinality clause (ouster clause) in Act No 41 of 1967'and theamending Act No.3 of 1990 confirmed this finality clause and added someomeraveLes mwhich the deciS!on of the Industrial Court couldbeinterferedwith Section 27 was amended by first deleting the marginal note to that sectionand substituting for it the following marginal note:

Powers ofrevision and finality ofdecision and awards ofthe court.

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5.16.

Then there followed the deletion ofsection 27(1) and asubstitution for it inthe following subsection:

hlfna ™5 C0U£ fulu ?JS P°Wer' 'n any Proceeding before it, on applicationbeing made in that behalf by any party or of its own motion, if it appears thatthere has been an error material to the merits of dispute involving injusticerevise the proceedings and make such decision or award in the matter as it'sees tit; save that no decision oraward shall be made by the Court in theexercise ofits jurisdiction under this sub-section, increasing the liability ofany party or altering the rights ofany party to his detriment, unless such partysnail have first been given an opportunity ofbeing heard.

Subsection (IA) deals with the composition ofthe Court exercising jurisdictionofrevision under subsection (I). Even where adecision or award made by theChairman is fixed for revision, the Chairman ofthe court must be there withtwo Deputy Chairmen. This is an anomaly because in such acase the chairmanof the Court would be revising his own decision oraward. Moreover the trueIS"/ °êlerm TeV\Si°u 'S that kSh0uld be ahiSher court other than thatwhich decided the case In the case ofsubsection (IA) it is the same- IndustrialCourt which handles the revision. The only difference here is that unlike inthe original case where either the Chairman or aDeputy Chairman sits withassessors to make adecision oraward, in the case ofa revision the Chairmanmust sit with two Deputy Chairmen and two assessors. The DeputyChairmen and the two assessors must be different from those who sat on theCourt when first heard the dispute. But for the Chairman, it does not matterwhether he sat on the Court which first heard the dispute or not. The chairmanmust preside over the Court when the revision is done even when what isbeing revised is his case i.e. whether he sat on the Court when itfirst heardthat dispute due for revision or not. It could be said that it is the full benchof theIndustrial Court which is doing therevision.

5'17" wS^r? (-'B) °fS/ui0,n V requires the Chief Justice, after consultationwith the Chairman ofthe Industrial Court, to make rules which have to becomplied with by all persons dealing with revision ofdecisions and awards ofhe Industrial Court. The Chief Justice has made these rules and to say the

least they leave alot to be desired. These rules, [Industrial Court (revisionproceedings) rules published as GN. no. 268 of 4/9/1992] limit revision onlyto asituation where aparty was absent during proceedings or where apartywas absent during the delivery ofthe decision or award ofthe court In effecttherefore this remedy ofrevision does not assist aparty from non jurisdictionalerrors committed by the court mmaking an award or deciding on mattersreferred to it. It is certainly nowhere near an appeal on merits.

10 Selwyn,n.m.l988-Laws of Employment, Sixth Edition Butterworths, London, pg. 59.

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518 Finally subsection (1C) makes an award and decision of the Court final andnS fable to be challenged, reviewed, questioned or called in question in anycourttvellrounds !f lack ofjurisdiction. Lack*j^™«| gfP"*ofthe Industrial Court is the only occasion when a full bench otthe HignCourt ma" and determine amatter coming from the Industrial Court onappeal.

519. Fortunately, thanks to the courageous ^°fWU™^frt™™Magasha/Dar es Salaam High Court Civil case no. 53of 1993 (u"êd>was filed questioning the wisdom and propriety ofse^n "(1C) Tl« tullbench of the High Court was required to decide whether section 27(1 C) wasunconstitutional in view ofArticle 13(6) of the Constitution The High CourtheWtoSion 27(1C) did not abide by Article 13(6)(a) of the ConstitutionsYrlceThadu^ effect of curtailing the basic right (??ff^^fÂrtlc,cand that section 27( lc) fell outside the purview ofArticle 30(2) ot theContimS^ând invalid to the extent that it deprived aperson of his basic rights of appealor another legal remedy except on grounds of lack of jurisdiction.

520 Although Magasha scase effectively gave parties in an Industrial Court tradedi pute or inquiry the right ofappeal to the High Court on merit, there has nobeePn any amendment to the Industrial Court of Tanzania Act ever smce. Butthere is no doubt that the law has now been effectively changed as far asappeals to the High Court are concerned. What is unsatisfactory is the facthTt no amendment in the Act has been made and as such many,P^ mightnot be aware of the High Court sdecision and might therefore still^ thinkhelaw to be the same as it was prior to the decision. We recommend that thePessary amendment be made to section 27(1c) of the Act as per decision ofthe High Court.

521 Before the Permanent Labour Tribunal Act was enacted in 1967 there.wereTrade Disputes (Arbitration and Settlement) Ordinance, Cap. 296 TradeDisputes (Settlement) Act 1962 and the Trade Disputes (SettlementAmendment) Act 1965. The Permanent Labour Tnbunal Act was enacted inorder to repeal and replace the Trade Disputes (Settlement) Act 19621 toestablish a Permanent Labour Tribunal, to amend certain laws relating todisputes in civil service and local government service, andto.providetormatters incidental thereto or connected therewith. It is the 1990 amendmentwhich changed it into an Industrial Court ofTanzania Act. The last amendmentto the Act was in 1993. Another amendment as aconsequence ofDar esSalaam Civil case no. 53 of 1994 is due. Even after this amendment there will"many features which are still unsatisfactory. We will go through theIndustrial Court Act to try and identify these unsatisfactory features.

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5.22. Part II of the Act was amended by Act no. 2 of 1993 by repealingthat partandreplacing for it another part II.A lotof anomalies have beenremoved bythe amendment such as in the procedure for settlement of disputes when theLabourCommissioner had to get the approval of the Minister in orderto refera dispute back to theparties for negotiation and settlement if any machineryfor settlement of tradedisputeswhichexists in the tradeor industryor branchhad not been madeuse of by the parties(proviso to 4(2) of Act no. 41 of1967). There wasyetanother provision whereby theMinister could postponereference of a trade dispute to the Tribunal even after the LabourCommissioner applies to theMinister to do so (proviso to section 4(4)(b) ofthe Act).

5.23. The problem with partII of theamending Act is thatthere is nothing saidabout a District Labour Officer or Labour Commissioner s failure to transmita dispute to the next ladder. It is recommended thatthere should be somesanctions against thisfailure. It is further suggested thatthere should bemoretime andnotonly 21 days within which to transmit thedispute because itmaynotbepracticable fora District Labour Officer in a remote district totransmit such dispute to the Labour Commissioner in Dares Salaam withintwenty one days after negotiations fail.

5.24. Another unsatisfactory feature is tobe found in section 18 asamended byActno. 3 of 1990. This section should have been enacted bearing in mind theprovisions ofthe Civil Service Act, which requires appointments above aparticular grade tobemade bythePresident The current Registrar ofthe Courtwas appointed bythePresident despite theprovisions of section 18(1) whichrequire him/her tobe appointed by the Minister since such appointment bythe Minister wouldbe contrary to the provisions of theCivilService Act. (seesection 2(a) of the Civil Service Act 1989)

5.25 There hasbeengreat improvement brought about byActno. 3 of 1990concerning assessors. Before 1990 the assessors for each trade dispute orinquiry had to be selected bythe minister and if a case was notheard due toany reason including the absence ofthe assessors, the Minister was requestedto make another selection. This situation made the hearing of a trade disputevery difficult. Now the Minister appoints panels of assessors from the TradeUnion side and the Association of Tanganyika Employers.

The presiding Chairman orDeputy Chairman selects the two assessors at thecommencement of the hearingof the dispute. Despitethe aboveitoftenhappensthat a dispute cannot take offbecause the assessors who have been selecteddonotturn up either both or one of them. Section 19 provides that the courtshall be properly constituted if presided over by the Chairman or a DeputyChairman sitting with 2 assessors. Since the Court may continue and concludethe proceedings notwithstanding the absence ofthe assessors who are onlyrequired to be both present atleast at the commencement, we think that their

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presence or absence is not essential, as is the case in the High Court for Criminalsessions. The Commission recommends that in order to ensure that the assessorsare present throughout the hearing for the purpose of getting the benefit oftheir opinions, there should be permanent assessors who are not involvedin any other employment Such assessors would be readily available for thehearing of disputes, and in that way the importance of assessors would berecognised.

5.26. The terms of appointment of Chairman and Deputy Chairman has been oneof three years duration. Therefore Chairman and Deputy Chairman come andgo at the Industrial Court every three years and new appointments are made interms of section 16(l)(a) and (b). That sort of arrangement does not assist inmoulding an Industrial Court, which is effective. In many countries includingKenya, Zimbabwe and the United Kingdom, Industrial Courts or Tribunalsare manned by staffwho are on a more or less permanent basis. The Judge inZimbabwe s Industrial Court for example has been at his job for some timeand the arrangements is that he remains there until retirement.Such is the position for his deputies as well. In that way the IndustrialCourt bench in Zimbabwe is bound to excel in industrial relations cases.

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CHAPTER SIX

SETTLEMENT OF DISPUTES

Disciplinary Control in the Civil Service and Local Government

6.1 The State established separate disciplinary authorities anddispute settlementmachinery for government, local government and the private sector. The CivilService Act, No. 16 of 1989 (which repealed and replaced the Civil ServiceAct, 1962, Cap. 509) designates the Head of Division, Principal Secretaryandthe ChiefSecretary as disciplinary authorities (5.20 of the Civil ServiceAct No. 16 of 1989).

6.2 The guiding principle ofall disciplinary authorities is that no one shouldbe condemned unheard and is stated in section 19 ofCivil Service Act No. 16of 1989. The section provide that:

(1) The power todismiss and toterminate the appointment ofcivil servantsshall be exercised in accordance with the provisions of this section.

(2) The power to dismiss a civil servant shall not be exercise unless-(a) a disciplinary charge is preferred against him;(b) he is afforded anadequate opportunity to answer thecharge,

and(c) an inquiry is held into thecharge in accordance with

regulations made under section 24

6.3 Part III of the Constitution of the United Republic of Tanzania, under article13 (6) (a) adds further that toensure equality before the law, the state authorityshall make procedures which are appropriate orwhich take into account thefollowing principles, namely: when the rights and duties of any person arebeing determined bythecourt orany other agency, that person shall beentitledto a fairhearing andto the rightof appeal or otherlegal remedy against thedecision of the court or of the other agency concerned

6.4 The above position of thelawis also supported bythecase of I. S. Msangi vJUWATA and Workers Development Corporation, (TLR, 1992). In thiscase theappellant sued thesecond respondent, theWorkers DevelopmentCorporation (W.D.C) for wrongful termination ofhis employment. Itwas heldby the full bench ofCourt ofAppeal that, ...it was necessary to afford theappellant the opportunity to be heard by the body which ultimately decidedhis fate i.e. the board of directors, because there can be no guarantee thatgiven that opportunity his defence before the board ofdirectors wouldnecessarily be the same as his defence before theprobe team.

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Disciplinary Code

6.5 According to the provisions of section4 (1) of the Security of EmploymentAct No. 62 of 1964, Disciplinary Code is interpreted to mean:

the code ofdisciplinary offences set out in the column of the secondschedule to the Act No. 62/64, as varied from time to time inaccordance with any order under section 52 of the Act

6.6. The disciplinary codeprovidedby the Securityof Employment Act Cap. 574(5.19 and Second Schedule)governs every employee in the private sector andparastatal organisation other than an employee who, in the opinion of thelabourofficer, is employedinthe managementofthe businessofhisemployer(5.4 (1).) In addition it governs every employee in government and localgovernment in the auxiliary grade. The Disciplinary code is administered bytrade union branches and Conciliation Boards established under section 10 ofthe Security of Employment Act, Cap. 574.

6.7. Part III (C) of the Security of EmploymentAct No. 62 of 1964, section 24 (1)sets out the functions and powers of the Conciliation Board as follows:

(a) to decide whether the summary dismissal, proposed summarydismissal or deduction from wages was justified and appropriate andthereupon confirm, reverse or vary the impositionof the disciplinarypenalty;

(b) may in the case ofan employee who has been dismissedor suspendedpending the decision of the Board, order his re-engagement orreinstatement as the case may be, or direct that the dismissal shouldtake effect as a terminationofemployment otherwise than by dismissal,and may authorise the imposition of a lesser disciplinary penalty;

(c) may order the refund to the employee of any deduction and mayauthorise the imposition of a lesser disciplinary penalty;

(d) may approve the terms of any lawful settlement between theemployer and the employee;

(e) May order reinstatement or re-engagement in cases of summarydismissal or unreasonable and unconscionable termination ofemployment-S.40A of Act No.l of 1975.

An incisive analyst has remarked that the Security of EmploymentAct is amisnomer. He states,

The Act is unique in its deception ofpurporting to protect workers.In its operation this law affords security of labour or the employerthrough workers themselves who sit in the union field branches andenforce the Disciplinary Code at the instance of the employer n

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The Commission concurs with this remark and believes that the Act is rootedin a system where labour is largely if not totally controlled andmanaged bythe State thus making it the largest employer desirous of protecting its owninterests and not the workers.

6.8 There are voices, which arguethat the mode of administration of thedisciplinary code is the source of indiscipline or has contributed to the fall indiscipline inTanzania. The Commission feels that the disciplinary code isabundantly effective incontrolling discipline aswell aspreventing employeesalienation at places of work. However, while the disciplinary code should beretained, the following changes are proposed:

An aggrieved party should be able to refer the decision of theConciliationBoard to the Industrial Court of Tanzania (and not to the Minister);

The definition of employee should not depend on the labourof ficer sopinion and should beconsistent with our earlier proposal on thegradingsystem. Accordingly, there must be specific criteria for definition of anemployee.

6:9 Section 40A which was introduced by Act No.l of 1975overrides otherprovisions in Parts III and IVof the Security of Employment Act, Cap. 574.The section provides thus:40A- (1) Notwithstanding any otherprovision of this Actor of anyotherwritten law, where an employer terminates the employment of any employeeor summarily dismisses anyemployee andemployee is aggrieved by suchtermination or dismissal, employee may at any time before the expiration offourteen days from the date on which such termination or dismissal takeseffect, refersuch termination or dismissal to the Board andthe Board may, ifis satisfied

(a) that thetermination wasmanifestly unreasonable andunconscionable;and

(b) that thecircumstances in and around which the employment of theemployee was terminated bytheemployer are not circumstances ofthe kind specified in subsection (2) of section 39; and

(c) that the employee didnot consent to the termination or that thetermination was not at the instance of the employee, and

(d) that the employee has notaccepted any statutory compensation towhich he may be entitled under this Act, and

(e) that the employee has nottaken up any other employment, and(f) that it will not beunreasonable or unjust to order theemployee s

re-instatement or re-engagement by the same employer, order theemployer to re-instate or engage the employee.

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What section 40A-(1) does is to make new provisions on termination ofemployment and dismissals of employees. This section has been assignedconflicting meanings:

(a) that reinstatement referred to in section 40A (1) is physicalreinstatement of the employee;

(b) that the provision is satisfied by the employer paying statutorycompensation and twelve months wages in lieu of physicalreinstatement, videD.A.N. Kavishe v. Arusha International Conference Centre, Courtof Appeal of Tanzania at Dar es salaam, civil application no. 1 of1987; Peter Ndonde v. Tanzania Shoe Company Ltd, High Courtof Tanzania at Dar es Salaam, misc. cc. no.9 of 1986; SimonByabato v. Mwanza Textile Limited High Court of Tanzania atMwanza, Misc. Cc. no.14 of 1991.

(c) that it is the employee who has the liberty to decide betweenphysicalreinstatementand receipt of statutory compensation and twelve monthswages in lieu of physical reinstatement, videJuma Ally Kaziabure v. Tanzania Posts anTelecommunicationsCorporation, High Court of Tanzania at Dar es Salaam, Misc. cc.no. 94 of 1985; Stephen Nfigongo v. Tanzania Electric SupplyCo. Ltd, High Court ofTanzania at Dar es Salaam, Misc. cc. no.15of 1986; Obadiah Saleh v. Dodoma Win Company Ltd, HighCourt of Tanzania at, Dodoma, Civil Case no. 53 of 1990.

The Commission recommends for adoption interpretation (b) aboveon the ground that it is consistent with freedom of contract ofemployment It is further recommended that the employer should notbe liable to pay damages to the employee (section 27 (2)) nor shouldthe employer be liable to be prosecuted under section 50 of Cap. 574for failure to reinstate the employee.

Conciliation Boards for Managerial Cadre:

6.10 There has been changes made by the ICTAct No.41 of 1967(as amended) byAct No.2 of 1993, under Part II which provide for procedure for settlement ofdisputes. This law has extended time of reporting a dispute to the LabourCommissioner from 14 days to 21 days. Section 6 (2) of the Act states that

where a Labour Officer is unable to effect a settlement of a tradedispute, he shall report in writing to the Labour Commissioner withintwenty one days of receiving the dispute.

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6.11. However, the above provision of the law does not spell out clearly,

• What happens if the Labour Officer fails to report a dispute to theLabour Commissioner within the time specified. Will the aggrievedemployee not suffer?

• If Labour Commissioner fails to transmit within 21 days the tradedispute to the Court (ICT) what will happen?The law should state clearly as to what happens and ensure that therights of the employee are not lost through negligence or otherwiseof the Labour Officer or Labour Commissioner.

However, research revealed that, the period specified is too short for a LabourOfficer especially up country District Labour officers to be able to report adispute to the Labour Commissioner whose office is in the headquarter - (Dares Salaam). The Commission there-ore recommends that the time specifiedfor the Labour officer to report to ths Labour Commissioner be extended tothirty days from the current twenty- one days.

Disputes and Trade Disputes

6.12. The Civil Service (Negotiating Machinery) Act, Cap. 484 (as amended by theIndustrial Court Act, No. 41 of 1967) makes provisions for settlement ofdisputes. Under section .2(1) dispute means any matter relating to the termsand conditions of service ofjunior civil servants which has been consideredby the Council, (i.e. Joint staff Council)without agreement having been reachedthereon and which has been reported to the Minister under section 8.The process is as follows:(i) the Minister refers a dispute to the ICT - section 9;(ii) the ICT considers the causes and circumstances of the

dispute and prepares a report - 5. 11(2);(iii) the ICT submits its report to the Minister within twenty one days

from the date of reference - 5.12(3);(iv) the Minister submits the report together with his comments, within

fourteen days, to the President of the URT -5.13(c).(v) the President makes an award - 5.13 (2).

6.13 Settlement oftrade disputes was regulated by the Trade Disputes (Settlement)Act, Cap. 480. It contained elaborate machinery for inquiry into condition ofindustrial ferment in the form of boards of inquiry. The Industrial Court ofTanzania Act, No. 41 of 1967 borrowed some aspects of Cap. 480 andintroduced new concepts and procedures such as reporting, conciliation andresolution of trade disputes. It defined a trade dispute to mean any dispute

11 Kapinga, W.B.L. (1985), State Control of the WorkingClass Through Labour Legislationin Shivji, I. G. (ED) (1985), The State and the Working People in Tanzania, CODESRIA,Dakar 1985; p.87-106 at p.I02

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between an employer and employees or an employee in the employment ofthat employer connected with the employment or non-employment of orthe terms of employment, or with the conditions of labour of any of thoseemployees or such an employee - section 2(3). The following offices/institutions have been allocated functions by Act No. 41/67 as amended) byAct No.2 of 1993 as follows:

(a) Union branch, which reports a trade dispute to the Labour Officer -S.4 (2).

(b) The Labour, officer uses his best endeavours to conciliate the parties- S.4(4)

(c) If there is no settlement, the Labour Officer reports in writing to theLabour Commissioner - s.6 (1).

(d) Labour Commissioner transmits the dispute to the Industrial Court(e) The ICT proceeds to consider the dispute and make an award

thereon - s. 6(3).(f) If at stage (b) above a settlement (negotiated agreement) is effected,

the Labour Officer submits the same in writing to the LabourCommissioner -s.5(l).

(g) The Labour commissioner transmits the negotiated agreement to theICT - s.5 (2).

(h) The ICT proceeds to decide whether or not to register the agreementas an award -s.5(2). The ICT examines the agreement, the report ofthe Labour Commissioner accompanying the agreement and anycomments, which the Minister may have made - Section 23( 1).

6.14 The Commission feels that as long as the aim of dispute resolution is industrialharmony, the relevant machinery should be reasonably fast to enable partiesto resume good working relations. The following proposals are hereby madein that light

(a) Permanent negotiating procedural rules for use by conciliators andlabour officers should be formulated and published in the Gazette.

(b) Where a settlement is effected, the negotiated agreementarising there from should be forwarded by the conciliator or labourofficer directly to the ICT for registration.

(c) The ICT should register the agreement, as it deems fit.(d) Assessors should be reasonably motivated to attend proceedings of

the ICT .(e) If possible to have assessors for ICT who are on more or less

permanent basis like the members of the Housing Appeals Tribunal(HAT). This could cut down the delays.

(f) Section 27 is also problematic vis a vis revision. First of all the wordICT must always form part of the panel even where what is beingrevised is a case which he had determined. It is recommended thatin view of the case of P. P. Magasha v. The Attorney-General

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and The Clerk to The National Assembly, High Court, civil case,no. 53 of 1994 in which the full bench of the High Court ruled thatthere must be a right of appeal from ICT decisions on merits, therevision exercise should stop.

(g) The finality clause in section 27(1C) should be removed.(h) There should be specialisation in labour matters like what they have

in Kenya, Zimbabwe and United Kingdom. The Judge appointed asChairman should continue in theappointment as long aspossible.The same should be for the Deputy Chairman. Rather than appointpersons for 3 years only they should be left on thejob for a longerperiod in order to gain experience and become experts.

STRIKES

6:15 Astrike may be defined as an act by employees ofconceitedly refusing towork for an employer until their gnsvances ordemands relating to wages,hours, or other terms and conditions of employment are satisfied orwithdrawn section 2(3) of the Industrial CourtAct, no.41 of 1967 and section2(1) ofthe Civil service (Negotiating Machinery) Act Cap 484 as amended byAct no.41 of 1967. Employees who strike usually walk offtheir jobs togetherand picket the employer s premises.

6:16 Astrike may also take the form ofa slowdown. In this case employeesreduce their customary rates of production. The aim of a strike is to inflictfinancial loss, either bycausing the shutdown ofa plant or interruptingoperations, in order to induce the employer to come to terms. Since strikersget no pay and thus also suffer financial loss, unions tend to use the strikeweapon only as a last resort. Unions, however, often pay benefits to strikingmembers. Such was the case in the 1786 strike ofthe Philadelphia printers;the first recorded union-led work stoppage in U.S. history.

6.17 The strike has been associated with the factory systemas the characteristicform of workerprotestagainstthe employer s powerto setand alterthe termsand conditions ofemployment. Through membership in orrepresentation bylabour unions, the individual worker has strengthened his bargaining power.Unions, acting as employee representatives, have adopted the strike, andthethreat of one, as majorweapons for advancing the economic interests of theirmembers. /

6.18 Other Strike Causes.

Unions have also called strikes to compel reinstatement ofa dischargedemployee, compliance with a collective labour agreement, recognition of theunion as bargaining agent (recognition strike), and assignment ofparticularwork to the striking union members rather than to members of a rival union(jurisdictional strike). Laws requiring anemployer to bargain with a unioncertified by a government agency as the representative ofa majority of

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employees have reduced the number ofrecognition strikes. Strikes support ofstrike action by employees of non-related employers (sympathy strikes) arerestricted bylaw inthe United States. Sympathy strikes involving entirecommunities aredeemed general strikes and have taken place inWinnipeg,Manitoba (1919), and San Francisco, California. (1934). The most dramaticstrike of this type was the British General Strike of 1926. Syndicalist andother political groups, chiefly outside ofthe United States and Canada, haveled general strikes against governments.

6.19 Major U.S. strikes in the 20th century have occurred in the anthracite coalindustry (1902), the garment industry (1909), the bituminous coal industry(1919; 1946), and the steel industry (1919, 1946, 1949, 1959). Sit-downstrikes, with workers occupying the employer s premises, took place in therubber (1936) and automobile (1937)mdustries. Canada has had far fewermajor work stoppages. Since World War II, however, there have been anumberof long andbitterstrikes in Quebec andotherprovinces.

6:20. The legality ofastrike in the United States under federal and states law dependsupon the lawfulness ofits purposes and on the means used by the strikers.Until about 1850, U.S. courts frequently outlawed strikes andtrade unionsthemselves asforms ofconspiracy. From the 1870 s tothe 1930 s strikes wereeffectively headed offand broken by court injunctions, defiance ofwhichbrought fines and imprisonment Army troops were used in the great railroadstrikes of 1877, the Homestead Strike (1892), andthe Pullman Strike (1894).But federal and state legislation-now protects the rights of employees toorganise and engage in peaceful concerted strike action, subject to limitations.Such laws include the Railway Labour Act (1926), the Norris-La GuardiaAnti-Injunction Act (1932), and the Byrnes Act (1936) against the interstatetransportation ofstrike-breakers. Another is the National Labour RelationsAct (1935) as amended by the Labour Management Relations Act (1947) andby the Labour Management Reporting and Disclosure Act (1959). Canadahas provided similar legislative safeguards in its Industrial Relations andDisputes Investigation Act (1949) and in comparable acts ineach province.

6.21 Strikes inTanzania aregoverned bytheIndustrial Court ofTanzania Act, No.41 of 1967 (asamended byAct No.2 of 1993) which prescribes steps whichmust betaken before employees can lawfully take partinastrike (s.11) Part Vof the Local Government Machinery Act No. 11 of 1982 prescribes theconditions to be fulfilled beforea strike takesplace.The Law (s.20 (1) ofActno. 11 of 1982 provides that no employer shall take part in a lock-out and nospecified government officer shall take part in a strike unless the conditionsspecified in subsection (2) and which are applicable to the occasion are firstfulfilled. The Law (s.20 (2) A (b) provides further that the minimum periodallowed is forty-two (42) days after the trade dispute was reported to theMinister. And such strike must be precededby a secretballot under thesupervision of the Labour Officer {s 11 (2)of the ICT Act}.

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6.22 The Commission observes that the prescribed period isintended tobe acoolingoffperiod during which the labour officer uses his best endeavours to conciliatethe parties (s.4(4) ofAct No.2 of 1993).The Commission observes furtherthat during that period of employees agitation productivity is likely to falland the longer theperiod the longer is theperiod of low production. Despitethat theCommission finds it necessary to keep thestatus quo because theLabour Commissioner is at the centreof things. Thus, where the LabourOfficer isunable toeffect asettlement ofthedispute hemust submit the disputeto the Labour Commissioner who will submit the same to the ITC.

6.23 Lock-outs areless prevalent than strikes. What actually takes place is that theemployees either lock out the employer so that he or she cannot enter thebusiness premises. This is similar to sit down strikes described above. Allthese actions by employees are serious breaches of the law and are thereforeillegal. It is the employer who is allowed in certain circumstances to lock outhisemployees so thattheycannot enterthebusiness premises andwork there.The requirement for a secret ballot before a strike cantake place appears tothe Commission to be unrealistic; for, if anyof the conditions listed in section1l(l)(a) to (d) arenot fulfilled by the authorities, what more canbe expectedif not a strike to force whoever is concerned to do what is required of him orher by the law? Suppose the ballot is cast and those who want to strike fallshort of2/3, what next? The dispute will remain there without being resolved.Until when will the dispute remain with the Labour Officer (Section 11(a)),or the Labour Commissioner(b) or the ICT (c) or until when will ICT remainwith the dispute without executing the award (d)? It seems to us that thepurpose of section 11(2) is to frustrate the employees and in turn to protectthose officials who fail to do their duty.

6.24 The Commission is also of the opinion that it is in order to putconditionsbefore a strike can occur. It would notmake sense foranyone to strike beforethe dispute hasbeendealt with. If a dispute hasbeen reported to a labourofficer for conciliation the Labour Officer must be given a chance to do so.The same is the position when the dispute is reported to the LabourCommissioner and eventually to the Court (ICT).

6.25 We also think that the Labour Commissioner must be involved in tradedisputes andthat it is correct for a report bya Labour Officer to go to theICTthrough the Labour Commissioner as the Act provides. The Civil Service(Negotiating Machinery) Act, Cap.484 regulates strikes in the civil service.The general provisions are contained in section 17.

17-(1)No junior civil servant shall take part in a strike unlessthe conditions specified in subsection (2) and whichare applicable tothe occasion have been fulfilled. (3) Any person who contravenesthe provisions of subsection (s) shallbeguiltyof anoffence andliableon conviction to a fine not exceeding onethousand shillings or toimprisonment for a term not exceeding six months or to both suchfine and imprisonment.

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The specified conditions are as follows: a report is made to the Minister ofexistence of a dispute (i.e., the council is unable to reach an agreement onany matter relating to the terms and conditions ofservice ofjunior civilservant or any class, grade or group thereof) and twenty one days haveelapsed since the date ofthe report to the Minister without a settlement beingeffected or a reference of the dispute back to the Council or a reference of thedispute tothe ICT. Where the dispute has been referred tothe Minister and tothe ICT a strike will be lawful if the ICT submits a report to the President ofthe URT and the President does not make an award within twenty-onedays to receipt of the ICT report.

6.26 Strikes in the Civil Service are regulated by the Civil Service (NegotiatingMachinery) Act 1963 as amended by the Industrial Court ofTanzania Act of1967. Thesteps proposed intheamendments andwhich arein force appear tobe appropriate since the President who derives his authority from theConstitution cannotbe ignored and (by passed (Articles 33(2), (3) and 35(1)of the Constitution).

6.27 Since World War II federal, state, and provincial laws have tended to putrestriction on the freedom to strike. Special laws apply to strikes in criticalindustries and to strikes having a national emergency effect.National labour policies have fostered an increasing number of collectivebargaining agreements with no-strike clauses and grievance and arbitrationprocedures forhandling disputes. Astrike contrary tosuch clauses and withoutunion authorisation or ratification is a wildcat strike.

6.28 Labour economists measure strikes by the number of actual workstoppagcs,number of workers involved, and number of man-days of idleness resulting.There are also measurements of the percentage of strikes called over variousissues. Strikes over wages, hours, and fringe benefits constitute the largestpercentage and are typical of U.S. and Canadian industrial history.

6:29 In Tanzania apart from the famous dock workers strikeof the colonial timestherehas notbeen anystrikeof marked importance in the aboveterms. This isexplained bythe fact that after independence the Government and its publiccorporations have been the largest employer and the government hasmadesure of enacting laws that have protected it from any damaging strike action.Such laws may need to be reviewed in the face of themassive privatisationtaking place now.

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CHAPTER VII

ADMINISTRATION OF LABOUR LAWS

7.1 The Labour Commissioner is a key civil servant in the administration oflabour laws inTanzania. He is the head of the Labour Department whosefunctions include overseeing individual and collective labour relations,workmen scompensation, and factory inspections and keeping labour statistics.At the head quarters there are heads ofsections; industrial relations, factoryinspection international labour affairs, human resources deployment, financeandpersonnel. Intheregions anddistricts Regional Labour Officers andDistrictLabour Officers represent the department respectively.

7.2. The functions of the LabourDepartment include:(a) to be custodian of all labour law regime;(b) overseeing individual and collective labour relations;(c) administration of the Workmen s Compensation scheme.(d) factory inspection;(e) keeping of labour statistics;(f) conducting litigation onbehalf of the individual employees basedon breach of employment contract;(g) under the Industrial CourtAct as amended by Act No.5 of 1990.The Labour Commissioner has been given the task of acting as a filter incontrol of industrial action and settlement of collective labour dispute.(h) administer Presidential Directives No. 1 of 1970.(i) control employment of foreigners.(j) to oversee, that there is co-ordination between-social partners andinternational community i.e. between Government, employers/ employeesassociations and international agencies such as UNDP, UNO ILO UNICEFOAU, SADC etc.(k) to advise the government on the ratification of international instruments.

7.3 The Labour Department is required to conduct frequent inspection ofplacesor employment such as factories toensure compliance with therelevant laws,and has an inspectorate cadre for this purpose. However in thelast few yearsno inspection has been conducted because of lack of workingtools, such asmotor vehicles due to lack of financial resources.

7.4. The present law depends onLabour Officers toensure compliance and also toprosecute in caseof the infringement of the provisions of the employmentlaw. The Labour Officers represent employees in magistrate courts underPart XIof theEmployment Ordinance at thesame time perform the functionofsetting disputes between employers and employees. The relevant provisionsof the Employment Ordinance state:

S. 130. Whenever an employer or employee shall neglect or refuseto fulfil theterms ofany contract of service, whenever any question,

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difference or dispute shall arise as totherights or liabilities ofeitherparty toa contract ofservice ortouching any misconduct, neglect orill treatment of or by such party, the party aggrieved mayreport thematter to a Labour Officer who shall there upon take such steps asmay seem to him tobe expedient to effect a settlement between theparties.

S.131. Where, upon receipt ofa report under section 130 orotherwise,a LabourOfficeris of theopinion thatanoffence underthe provisionsof this Ordinance has been committed by an employer, employee, orany other person, hemay himself take such step asmaybe necessaryby making the facts known to the police orotherwise, to bring theemployer, employee or such otherperson before the Court.

S.132.Where, on receiptof a reportunder section 130, a LabourOfficer does not act in accordance with the provision of section 131and is unable to effect a settlement between the parties, he may, at therequest ofeither party oronhisown motion submit a written report toa magistrate setting out the facts of the case.

S.133-(l) Every District Magistrate (whether or nothe is a CivilMagistrate) shall have jurisdiction, notwithstanding anything to thecontrary contained in any Ordinance orlawrespecting thejurisdictionofsuch Magistrate, inallcases ormatters arising between employersand then employees and with reference to their relative rights andduties or to any matter or thing or offence for which provision ismade in this Ordinance.

S.134- (1)Onthereceipt of a report under section 132 themagistrateshall, where the facts appear to himto be such as may found a civilsuit, issue such process as he may think fit to cause the parties oreither of them and the witnesses to attend before him.

(2) Upon the attendance of theparties themagistrate shallproceed to trythe issues disclosed in the report as if theproceedings before him were a civil suit, without requiring thepartiesor any party to file any pleading.

LABOUR STATISTICS

7.5 The labour legislation does not allow easy and accurate collection of labourstatistics. The development ofgood labour economics requires accurate dataon labour force mobility, composition, age spread, mean education, andcontribution to the Gross National Product.

7.6 In order to facilitate the collection of such data the Commission recommendsthat the following should be done:

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(a) every employer should keep a register of all employees and furnish to theLabour Commissioner an annual report on the labour force engaged duringthe yearas well as, all the employees in his employment, including detailsrelating to age, education, profession, etc;

(b) require every person on reaching the ageof eighteen years to register atthe nearest labour office or otherdesignated office andobtain a registrationcard with a registration numberon it. If and when such a person securesemployment he gets an employment card and hands over to the labour officeror privateemployment centrethe registration card for custody;

7.7 The Commission notes thata National Employment Service (NES) wasabandoned some years ago. The advantages ofNES are;

(1)provision of a central machinery through which ajob seeker canapproachthe labour market;

(2) provision of a central machinery through whichemployers can recruitworkers;

(3)provisionof meansof ensuringthatonlyproperlyqualified persons obtainthe advertised jobs; and

(4) provisionof means of checking that proper wages are paid throughperiodic labour inspection.

7.8 There have been suggestions for a liberalised NES. The Commissionrecommends it and proposes that private employment centres shouldbe linked to the Labour Commissioner and they must submit to thatoffice promptly accurate quarterly / annual reports.

LABOUR ADVISORY BOARD

7.9 The LabourAdvisory Board is established under the provisions of section 3of the Employment Ordinance, Cap. 366. Its membership includes publicofficers and representatives of employers and Employees (Social Partners).The Labour Commissioner is the Chairman of the Board.

7.10 Section 4 of the Employment Ordinance provides functions of the Board,which are:

(1) to consider and advise the Minister concerning employment such asoperation of the employment service, policy and all matters concerningrelations betweenthe UnitedRepublic of Tanzania andthe International LabourOrganisation including preparation of reports replies and comments onquestionnaire.

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(2)advising theMinister concerning action tobetaken to facilitate compliancewith the obligations imposed by the Intemational Labour Conventions.

(3) to advise the Minister onall matters relating to health and safety at workincluding preventive measures, control andprotection against occupationalhazards in workplace due to pollution, vibrations and chemicals.

7.11 The board has not been active in recent years. The Commission recommendsthat the LabourDepartment shouldtake an interest in re-activating andconvening sittings of the Labour Advisory Board. The Commissionrecommends that the law shouldprescribe a term for the board membershipe.g. for a fixed period ofthree years. Provisions for removal of such membersin case of misconduct should also be incorporated.

WORKMEN S COMPENSATION

7.12 The Workmen s Compensation Ordinance wasenacted in 1948 to provide forcompensation to workmen who suffer injuries in the course of theiremployment. Sinceits inception the Ordinance hasbeen amended byAct No.60 of 1966, Act No.43 of 1967 and Act No. 17 of 1983.

7:13 The Ordinance provides for a lump sum compensation for injury caused byan accidentarisingout of and in the courseof employment. According tosection 7 as amended byAct No.17 of 1983 wherepermanent total incapacityresults from the injury, the amount of compensation shall be a sum equal tofifty-four months earnings.

7.14 The proviso to this section states that, in no case shall be amountofcompensation in respect of permanent total incapacity be greater thanfiftyfour thousands one hundred and eight shillings and not less than two thousandshillings.

7.15 Section 6 (C) ofAct 17 of 1983 stipulates, that if the workman leaves nodependants the reasonable expenses of the burial of the deceased workmanshould not exceed the sum of five hundred shillings (500/=) which shall bepaid by the employer.

7.16 Byvirtue of section 42(1) any employer who fails to comply with anycompensation order under theOrdinance without anyreasonable cause isguiltyofan offence and is liable on conviction to a fine not exceeding forty thousandshillings.

7.17 The Commission observes that, despite the amendments the amountpayableforcompensation andpenalty is very low. The Commission recommendschange of formula. The Commission recommends that the compensation fortotal incapacity beno greater thantwomillion shillings andnot lessthanfifty

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thousands shillings. In case the workman dies the costs for his burial shouldbe as is prescribed in the Government Standing Orders.

CHILD LABOUR

7.18 Conceptually child labour is an engagement of a class of persons known aschildren below 15 years in activities that may impair physical, mental, moral,spiritual and social development.

7.19 According to International LabourOrganisation (ILO)child labouris definedas work or employment situation where children are engaged on a more orless regular basis to earn a livelihood for themselves or their families. Achild is a victim of exploitation because he or she is a source of cheap labour.Besides the child being a source of cheap labour, she/he is also exposed todanger which may affect the child s physical as well as mental development.

7.20 It is observed that most of the chiloren who are victims of child labour areorphans, neglected or come from poor families, single parents, and divorces.Child labour has the following characteristics:

(1) Work in which the child is paid less than what her/she deservesfor his/her labour input (exploitative child labour).

(2) Workwhich subjects the child to immoral behavioure.g. prostitution,(3) Workthat exposes the child to hazards e.g. being affected by agro

chemicals, poisonous substances, and accidents, etc.(4) While performing the work, the child is deprived of his/her

rights such as the right to get education, recreation, protection andfood.

CHILD LABOUR IN TANZANIA

7.21 Child labour is an alien concept in Tanzania. As in many other Africantraditional societies, it came with the introduction of the money economy andthe monopolistic and often cut-throat capitalistic competition - whose mainmotive has been the maximisation of profit: thus the cheaper the labour, thebigger the profits. There is need however to distinguishbetweenchild labourand child work; child work is involving a child in doing various family andcommunity activities as part of socialisation, by giving due consideration tothe child s ability and best interest.While child labour is making a child perform tasks that are beyond his/hercapacity, and denying his/her basic rights.

7.22 In Tanzania child labour has its roots going back to the colonial era, whenchildren were employed to facilitate the expansion of the colonial economy.One of the first pieces of legislation on child labourwas The Employmentof Women and Young Persons Ordinance of 1940.The Ordinance prohibited

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the employment of children in industrial undertaking (section 91), in othersectors children could be employed on a daily wage, on a day to day basisprovidedthat each night they returnedto the place of residenceof their parentsor guardians (section 4). The above mentioned prohibition was not totallyprotective to the child since the Governor was given power to exemptanyindustrial undertaking from the provisions of the law. However, the interestof the colonial power which was to assist big farm owners, who employeda large number of children was preserved by not restricting child labour.

CAUSES OF CHILD LABOUR

7.23 Tied directly to poverty, child labour remains an extremely serious issuethroughout Tanzania. The problem of child labour relates not to the fact thatchildren are working per se but rather that work may interfere with theirdevelopment in a number of ways. In a wage labour situation, long hourswithout enough rest, limited nutrition and lack of a nurturing environmentmay severely limit both physical and mental growth of a child. The workingenvironment itself also hinders the growth and development of a childlabourer, for instance where lighting is poor, the air is polluted, or the workitself is hazardous. Unscrupulousemployers might also abuse the child andthis may involve mental abuse, which breaks the child s spirit, in addition tophysical abuse. Poverty is the single biggest factor forcing children to work;many child labourers are their families source of income.

7.24 Child labourentails a denial of fundamental human rights on the one hand,and immeasurable long term costs to society, on the other; the lack ofeducational opportunities, substandard educational facilities, the directand hidden costs of education and the low quality of education offered,all combine to perpetuate the problem of child labour. Other causes of childlabour include the following:

(1) Entrenched social and cultural practices: Equally important contributoryfactors are long-standing and resistant attitudes and practices that are oftenaccepted uncritically, e.g. emphasis on educating boys at the expense of girls

(2) Adventure: It was noted that some children are engaged in labour becausethey want to make their own living (money).

(3) Group Influence: Some of the children become child labourers because ofgroup influence e. g. tea picking, street vendors, domestic work or evenprostitution.

(4)Decay of Society Morals: Strong family ties which used to bind thesocietytogetherare no longer there, for examplechildrenwhoseparents are dead orseparated are left to struggle on their own for survival hence persistence ofchild labour.

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(5) Lack of proper and systematic parental care: This compels children tochild labour.

(6) Cost sharing: The policy of cost sharing in schools has forced somechildren to engage in child labouras the only alternative to generate moneyneeded in paying for basic needs at school.

(7) Weak economy: Tanzania faces an economic crisis. Rising poverty is drivingmore and more children into the labour market.

(8) Health threats: The AIDS epidemic has contributed to the rising populationof street children and child labourers.

(9) Regulatory measures: Lack of effective enforcement of regulatorymeasures, has been the cause for easy exploitation of children.

(10) The removal ofsubsidies on education: This has contributed to asituationwhereby about 30% of all 10-14 yearold are outof school.

(11) Retrenchment: Retrenchment which is a result of astute governmenteconomic policies has compelled most parents to enlist the contribution oftheir children to supplement the reduced meagre family incomes.

GENERAL FINDINGS

7.24 Today child labour is still a world-wide social problem. Available statisticsindicate that children involved in child labour range from 100to 200 million,which is equivalent to4% -8% ofthe world employment potential of2.4billion economically active people.

7.26 A research carried out by labour inspectors during the period covered fromJanuary toAugust 1997 under the Ministry ofLabour and Youth Developmentidentified forms of child labour which exist in Tanzania to include:

Pastoralism

Agriculture

Fishing

Petty Trade

Domestic labour.

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7.27. The Inspection survey established that theemployment status of childworkers could be categorised into:

(a) Children who are employed on full time basis and do not attendschoolcompletely. Basically theseare children whowork as domesticservants street vendors, petty traders and pastoralists.

(b) Children who areonparttime employment. These children areabsentfrom school forall the time are employed. The inspection noted thatthese are children, who live close tosmall and large-scale tea, tobaccoand coffee plantations and therefore theiremployment is seasonal.

(c) Children who attend school but are engaged inpart time employmentafterschool hours. These are vulnerable to poor academicperformance because they do not have adequate rest ortime to study.

7.28 Research conducted by labour inspectors during the period (under Ministryof Labour and Youth Development) covered from September to November1996 and January to August 1997 revealed that forms of child labour andnature of working environment differed from one work environment to anotherand or from task performed to another.

7.29 There are between 350,000 and 400,000 children below 15 years ofage,engaged in(child labour) inagriculture, mining, informal sector and indomesticservice. Arecent study conducted by UNICEF shows that the following sectorsarecloselyassociated with the exploitation of child labour:

Agriculture

(i) Tobacco estates in Iringa District employ 1,200 to 1,500 childrenaged 10-15 years;

(ii) Tea estates inMufindi District employ approximately 120 childrenaged 12 to 15 years per estate;

(iii) Rubber, cloves and green algae in Zanzibar employ children aged 8to 15 years, constituting 10 to 14% of the labour force;

(iv) Sugar cane plantation: At Mtibwa in Morogoro District, 40%ofprimary school children work part time intheplantation inorder toearn some extra money to buy school uniforms and other schoolrequirements;

(v) Sisal and tea plantations: In Kilimanjaro Morogoro and Tanga regions.5,500 to 7,000children, aged below 15 years are labourers.

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Mining

In Mererani in Arusha District, 30% to 40% ofprimary school drop outs werefound working underground

7.30 The increasing rural - urban migration of youths and young children hasresulted in the swelling of urban informal sector, where children below 15years of age are believed to constitute about half the workforce.

REGULATORY MEASURES TAKEN TO COMBAT CHILD LABOUR

7.31. The ILO s Minimum Age Convention 1973 (No. 138) is the fundamentalinternational standard on child labour. The objective of the convention is toabolish most intolerable forms of child labour, namely the employment ofchildren in slave like and bonded conditions and dangerous and hazardouswork, the exploitation of very young children, the commercial sexualexploitation of children, the denial of access to education and explicit inclusionof children in armed combat or military activities.

7.32 Since 1990, ILO action against child labour has developed in scope andintensity with technical co-operation featuring more prominently. In 1992,the creation of International Programme on the Elimination of Child Labour(IPEC) gave new impetus to the ILO s offensive against child labour.

7.33 IPEC was introduced in Tanzania following the signing of a Memorandum ofUnderstandingbetween the Government of Tanzania and ILO in 1994.Tosome extent ILO s has helped to stimulate efforts to combat child labour byfacilitating and supporting different action programmes. The Government ofTanzania instituted schemes, to assist in the fight against child labour, forexample in 1977 the Universal Primary Education (UPE)was introducedrequiring every child aged 7 years and above to attend school thus reducingthe number of children roaming around without going to school. Inspite ofthe introduction ofthe Universal Primary Education, there were shortcomingssuch as poor quality education, unskilled teachers, high work load to teachers,highcostsof schooling whichled someparentsto remove their children fromattending School and sending them to work, in order to supplementthe familyincome to contain high costs of living from draining the family income.

7.34 The other measures are contained in the Employment Ordinance Cap.366under Part VII, which prohibit child labour in Tanzania.Section 77 of the Employment Ordinance as amended by Act No. 5 of 1969(1) No child under the prescribed age shall be employed in any

capacity whatsoever.

(2) Any person who employs any child under the prescribed ageshall be guilty of an offence against this part of this ordinance.

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(3) For the purpose of this section prescribed age means the apparentage of twelve years or such age between twelve years and fifteenyears as the Minister may from time to time by order published in theGazette declare to be the prescribed age for the purpose ofthis section.

(4) Nothing in this part or in any other provision of this Ordinance or inany written law shall be construed as permitting employment of achild under the prescribed age

7.35 Section 78 provides for employment of children. A child shall be employedonly upon a daily wage and on a day to day basis and upon the terms that hereturns each night to the place of residence of his parent or guardian. Anyperson who employs a child is in contravention of the provisions of theOrdinance .

7.36 Furthermore, section 79 (3) & (4) prohibits and restricts employment ofchildren and young persons:

No child or young person shall be employed in any employment which isinjurious to health, dangerous, or otherwise unsuitable

(3) No Person shall, after being notified in writing by the properauthority that the kind ofwork upon which a child or young person isemployee is injurious to his health, dangerous or otherwise unsuitable,continue so to employ him.

(4) Any person who employs any child or young person in anyemployment which is injurious to health, dangerous or otherwiseunsuitable or who continues to employ any young person in any workto which he/she has been notified by the proper authority that it isinjurious to health, dangerous or otherwise unsuitable, shall commitan offence against this part of this Ordinance.

7.37 According to sections 81(1), 82(1)no child shall be employed in any industrialundertaking or any open cast works or in any sub surface works which areentered by means ofa shaft. However this section does not apply where workis done by children in technical schools or similar institutions where the workis licensed and approved by the Director of Education. The penalty providedfor contravention of provisions under this part is very small. The section 94states:

Any person who commits an offence against this part of thisOrdinance for which no penalty is expressly provided shall be liableupon conviction to a fine not exceeding two thousand shillings or toimprisonment for a term not exceeding three months or to both suchfine and imprisonment, and in the case of a second or subsequentoffence to a fine notexceeding four thousand shillings or to

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imprisonment for a term not exceeding six months or to both suchfine and imprisonment

7.38 The law does not provide for adequate penalty for contravention of thestipulated offences. The Commission recommends amendment to enhancepenalties so as to discourage child labour

EXPERIENCE FROM OTHER COUNTRIES

Age for employing A child:

7.39. In Kenya the minimum age ofemployment is 16 years but 15 years in Zanzibarand Zambia. The Minimum Age Convention 1973 (Article 2(3), provides thatthe minimum age of employment shall not be less than the age of completionof compulsory schooling but shall not be less than 15 years. Hence,completion ofcompulsory schoolir g is made a pre-condition for employmentunlike many countries legislation, which provide only for the age ofemployment.

Employment of children in Training Institutions:

7.40. Some countries legislation allow work by children in training institutionssuch as in:

Kenya:In Kenya, section 25 of the Employment Act of Kenya, 1976, prohibits theemployment of children under 16 years in any industrial undertakin unlesssuch employment is under deed ofapprenticeship or indentured leadership asgoverned by their Industrial Training Act.

Zambia:In Zambia under the provisions ofsection 4(2) ofthe Employment of Women,Young Persons and Children Act, Cap, 505, work done by children in technicalor similar institutions, which are approved by the Minister of Education, isallowed. Section 7 of the same Act further allows exceptional employment ofyoung persons under a contract of apprenticeship as authorised by a labourofficer.

Zanzibar.

The provisions of section 3(3) of the Employment Decree ofZanzibar, 1952,allow work done by children as long as it is approved by the Director ofEducation. The law further provides that work done under a lawful contractof apprenticeship as an exception to the general rule of restriction ofemployment of children (see section 5).

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U. N. Convention

7.41. Article 28 (1)( d) of the Convention on the Rights of the Child encouragesgeneral and specialised education to be imparted to a child. Moreover Article6 of the ILO Convention No. 138, reflects on the exception ofallowing workdone by children and young persons in vocational or technical education.

Protection of Child s Health and Safety

ILO Convention

7.42 Article 3(3) of the ILO Convention No. 138 include international standardson the issue of protecting the child s health, safety and working conditions,while Article 9(3) ofthe same Convention requires employers to keep registers,especially of persons employed, who are under 18 years. Moreover; Article32( 1) ofthe Convention on the Rights ofthe Child states that parties recognisethe right of the child to be protected from economic exploitation and fromperforming any work that is likely to be hazardous or to interfere with thechild s education, or to be harmful to the child s health or physical, mental orspiritual, moral or social development.

7.43 For example in Zanzibar young persons are required to be medicallyexamined before they can be employed. There are also restrictions onemployment of children and young persons in work injurious to their health,is dangerous or immoral. (See section 11 of the Employment of Children,Young Persons and Adolescents (Restriction) Decree).

Offences and Penalties

7.44 In Zanzibar when one contravenes the requirements of the decree byemploying a child is liable to general penalty of a fine not exceeding Shs.1,000/= or six months imprisonment as provided for in section 18(1); andwhere an employer does not keep a register, he shall be guilty of an offenceand liable on conviction to a fine not exceeding 500/= or imprisonment notexceeding three months or both (see section 18(2).

7.45 However, parents or guardian by wilful default or neglect ofchildren commitan offence and are liable to a fine not exceeding Shs. 1,000/= or 6 monthsimprisonment or both such fine and imprisonment as provided under section19.

7.46 In Kenya, the Chiefs Act 1982 protects children by not permitting work to bedone from 6.30 p.m. to 6.30 a.m. insisting on medical examination, andproviding powers to a labour officer to cancel a contract of employment of achild. Restrictions are also imposed for children to work in bars, hotels orships unless it is a family undertaking. Moreover, Article 8(1) of Convention

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No. 138 provides protection tochildren whoparticipate in artistic performancesuch as acrobatics, singing, dancing and other artistic performance.International standards, including measures to ensure effective enforcementas well as penalties are included in Article 9(1) of ILO Convention No. 138and Article 32(2)(c) of the Convention of theRights of the Child. Accordingto Article 28 of the Convention of the Rights of the Child, the child hasa right to education and every member state is obliged to ensure that primaryeducation is free and compulsory. Tanzania introduced Universal PrimaryEducation (UPE) in 1977, while in Kenya it was introduced since 1974andsteps had been taken to ensure that all children attended school and that freeeducation is provided. On the other hand, as far as Zanzibar is concerned,Education ActNo 6 of 1982 provides for basic primary and secondaryeducation as a rightto every childandthe Government is bound to provideeducation to every child.

7.47 The Commission considers it appro'mate to recommend Co-ordinated effortsbyappropriate Ministries soastoensure the registration of working children,inspection of the areas where they work, enforcement of child labour laws(Ministry of Labour and Ministry of Community Development Women andChildren).

(1) The Commission also recommends the enhancement of the penaltiese.g. under S. 94 of Cap. 366, a fine does not exceed 2,000/=; such afine could be increased to 100,000/=.

(2) Children should not be employed in hotels, bars and areas wherealcohol is sold.

(3) Since education can prepare a child for its future adult life thegovernment should therefore continue to prosecute those whoprevent children from going to school as such measure would reducethe loophole to engage children in jobs.

(4) Children underthe prescribed age of employment or even youngpersons (between 14-18 years) should be employed or allowed toparticipate forgainin artistic performance (entertainment) onlyiftheyare granted a special permit; as provided in Article 8(1) of ConventionNo. 138.

(5) Parents and guardians should also be sensitised through publiclegal education to the risks and hazards, which may afreet the healthof children if they are employee in some jobs such as factoriesor underground mines.

(6) TheGovernment should amend lawsbyaddingprovision to empowerLocal GovernmentAuthorities to make by laws prohibiting childlabour.

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(7) The Government through theMinistry of Labour and YouthDevelopment shouldcreatea data bank of all research surveysundertaken toeliminating childlabourandinturnthedatabankshouldbe the reference point/area for everybody.

(8) It isnecessary toeducate parents, teachers, village leaders, employers(andchildren) regarding the evils of childlabour on the intellectualand physical growthof childrenand educate them on the need toensure that childrengo and attendschool.The following shouldalsobe considered:

(a) Thatchildren who arephysically involved in different forms ofchild labour, be aware that schooling for them should be accordedfirst priority.

(b) That school teachers must make the schoolenvironment moreconducive to attractpupils. Teachers shouldalso be totally againstthe evils of child labour in their respective school area.

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CHAPTER EIGHT

RECOMMENDATIONS

1. The Commission has found that labour laws are scattered in numerousenactment and amending legislation. This position complicates theirapplication in any given situation. Accordingly, a labour code was consideredas a possible solution to the problem of multiplicity of laws.The argument is that a code makes reference easy.

2 The Commission further recommends that there is need for equitable labourlaw regime which should include the following guiding principles:

(i) Labour law regime should be in consonance with the principle of theequal treatment of all workers in all kinds of Employment.

(ii) The Labour Law regime shall comply with the principles of humanrights, in particular the rights enshrined in the Constitution of the UnitedRepublic ofTanzania and in the African Charter on Human and Peoples Rights,1984 in general and ILO Conventions in particular.

(iii) The Labour Law regime should be such as would enable thiscountry to maintain respect for and uphold the Rule of Law.

(iv) The Labour Law regime should serve employees well and should guideemployers to provide equitable good conditions of employment, just wagesetc.

(v) The Labour Law regime should serve as an instrument of liberation ofworkers and recognition and protection of their right to organise and claimtheir rights:.

(vi) The Labour Law regime should provide for elimination of arbitrariness,officialism and excessive bureaucracy in the process of settling disputes.

(vii) The Labour Law regime should assist in the growth of development ofafree market economy leading to the private sector occupying the dominantposition in the economy.

3. That in order to enhance productivity, the Commission recommends that theLabour Law regime should include the following:

(a) Grading and advancement of staff should be on merit; the best qualifiedand experienced should have preference in employment.Subsequently actual performance should determine promotion and other forms

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of advancement in the service ladder.

(b) Payment by results - minimum standards should be fixed for a day s work.Performance over and above the minimum should be awarded separately; thehigher the performance, the higher the pay.

(c) Recognition oftalent - the best worker award should be institutionalisedand the award system should be rationalised.

(d) That the minimum wage should be equivalent to a living wage based onthe cost ofliving index for urban dwellers must always take into considerationthe varying levels of inflation.

4. Further, the Commission recommends for the adoption of a uniform CODEOF EMPLOYMENT ETHICS that will bind all employers and employees inboth the public and private sectors.

5. That Part III, and in particular section 5 of the Civil Service Act no. 16 of1989 be amended so that the composition of the members ofthe Civil ServiceCommission include at least one representative from the relevant trade unioni.e. TUGHE.

6. That lay - off and redundancy/retrenchment should be defined by legislationwhile other related matters should be adopted through collective bargaining.

7. That the three tier grading system, that is to say, shopfloor, supervisory andmanagerial grades based on functions, should also apply to governmentemployees.

8. That section 56 of the Act be amended to allow union service charges to bededucted from non-union members salaries only after their consent in orderto protect their constitutional rights.

9. That the Minister s proposal for extension ofan award made in respect ofoneundertaking of any trade or industry to any other undertaking of that trade orindustry should be referred to the respective trade union(s) and employer oremployers.( see s.40 of the Industrial Court Act)

10. The principle of the most representative trade union be applied also in ss.13of the Ordinance or 14 ofthe Trade Unions Act during registration and shouldbe determined on objective, pre-established and precise criteria to avoidpossible bias and abuse.

11. Section 29(a) of the Trade Unions Act should be amended to reflect the realmeaning of the kind of resolution of relations it is intended to cover. It wouldappear that the resolution of relations referred to is not only between

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employees and employers, or between employers and employees for this isonly repetitive but between employees and employers, employees andemployees or employers and employers .

12. That any party who is aggrieved by the decision of the Conciliation Boardmay make a reference to the ICT and not the Minister.

13.

may maKe a reierence 10 me n^-1 ana nor me Minister.

That payment by the employer of twelve months wages and statutorycompensation in lieu ofreinstatement should satisfy the requirements ofsection40A of the Security of Employment Act, Cap.574.

14. That permanent negotiating procedural rules for use by conciliators should beformulated and published. That assessors should be reasonably motivated toattend proceedings of the ICT; there be assessors for ICT who are on more orless permanent basis like the members ofthe Housing Appeal Tribunal (HAT).

15. That section 27 of the ICT Act should be amended by replacing the wordrevision by the word review to remove the misnomer; and the finality

clause in section 27 (c) be removed.

16. That there should be specialisation in labour matters like what they have inKenya, Zimbabwe and United Kingdom. The appointed chairman andDeputy chairman should be left on the job for a period offive years in order togain experience and become experts.

17. That every employer should keep a register of all employees and furnish tothe Labour Commissioner an annual report on the labour force engaged duringthe year as well as all the employees in his employment, including detailsrelating to age, education, profession, etc.

18. That section 6 (c) ofAct No. 17: of 1983 should be amended to read that ifthe workman leaves no dependants the reasonable expenses of the burial ofthe deceased workman should be in accordance with stipulated costs inGovernment standing order, which shall be paid by the employer .

19. That section 42 (1) ofAct No. 17 of 1983 should be amended to increase therate of fine an employer should pay due to failure to comply with thecompensation from forty thousand shillings (40,000/=) to an amount whichreflect the value of the currency

20. That despite the amendments the amount payable for compensation is verylow; the compensation for total incapacity must reflect the current value ofthe currency.

21. That the Labour Advisory Board should be re-activated, the law shouldprescribe the term or duration of the board membership e.g. for a fixed periodof three years and the provisions for removal of such members in case ofmisconduct should also be incorporated.

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22. That on child labour, the Commission recommends co-ordinated effortsto be taken by the appropriate ministries to ensure the registration ofworkingchildren, inspection of the areas where they work, and enforcement of thelaw.

23. That children should not be employed in hotels, bars and areas where alcoholis sold.

24. That there is need for the enhancement of the penalties under section 94 ofCap. 366, to increase the rate of fine from two thousand shillings (2,000/-) toan amount that will reflect the current value of the currency.

25. That children under the prescribed age ofemployment or even young persons(between 15-18 years) should be employed or allowed to participate for gainin artist performance (entertainment) only if they are granted a specialpermit; as provided in Article 8(1) of Convention No. 138.

26. That government should amend laws by adding provisions to empower LocalGovernment Authorities to make by-laws prohibiting child labour.

27. That the government through the Ministry ofLabour and Youth Developmentshould create a data bank of all research surveys undertaken on eliminatingchild labour to be used as a reference point/ area.

28. It has been a habit now to give one month s notice in cases of termination. Inother countries it has become customary to give an employee with more yearsof service more notice. He has settled down in his job more, has given hisemployer good service and no doubt, he has more commitments as he getsolder. For these reasons it seems fair to increase his entitlement since theaverage working life is about thirty years the periods ofservice and the noticeperiod should be divided into three groups. For the first ten years ofcontinuousservice the notice period should be one month. The second ten years ofcontinuous service the notice period should be three months, and the third tenyears of continuous service the notice period should be six months.

29. That sections 78 and 56 of the Ordinance and the Act respectively and section4 of both legislation be rationalised in terms of lowest age of becoming amember of a Trade Union.

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APPENDICESAPPENDIX A

Principal Legislation

1922 Hut and Poll Tax Ordinance, No. 12Involuntary Servitude (Abolition) Ordinance, No. 13House Tax Ordinance, No 26.

1923 Master and Native Servants Ordinance, No. 321926 Master and Native Servants Ordinance, No. 11

Native Authority Ordinance, No. 18

1927 Master and Native Servants (Amendment) Ordinance, No.9.1931 Master and Native Servants (Amendment) Ordinance, No. 35.1932 Trade Union Ordinance, No. 32

Shop Assistants-Employment Ordinance, No. 33.

1934 Native Tax Ordinance, no. 20.'935 Identification Ordinance, No 13.

^8 Employment of Women Ordinance, No. 14.Trade Union (Amendment) Ordinance, No.7Minimum Wage Ordinance, No. 19.

194l ^loyment of Women and Young Persons Ordinance, No.5compulsory Service Ordinance, No 23. .

1941 Trade Union (Amendment) Ordinance, No. 30.1942 Master and Native Servants (Written Contracts) Ordinance, No.28.

1943 Employment of Women and Young Persons (Amendment) Ordinance,No.4

1945 Sisal Industry Ordinance, No. 15Shop Hours Ordinance; No. 25.

1947 Labour Utilisation Ordinance, No.2Trade Disputes (Arbitration and Enquiry) Ordinance, No 11Minimum Wages (Amendment) Ordinance, No. 14

1948 Workmen s Compensation Ordinance, No. 43.1949 Workmen s Compensation (Amendment) Ordinance, No. 41.1950 Factories Ordinance, No. 46

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Trade Disputes (Arbitration and Settlement) Ordinance, No 43.

1951 Regulation of Wages and Terms of Employment Ordinance, No 20Accidents and Occupational Diseases (Notification) Ordinance, No. 25.

1953 Dockworkers (Regulation of Employment) Ordinance, No. 20Accidents and Occupational Diseases (Notification) Ordinance, No. 25.

1954 Workmen s Compensation (Amendment) Ordinance, No. 28.1955 Employment Ordinance, No. 47.1956 Trade Union Ordinance, No. 48.1957 Workmen s Compensation (Amendment) Ordinance, No.4

Regulation of Wages and Terms of Employment Ordinance, No.7.1958 Trade Disputes (Arbitration and Settlement) Ordinance, No. 56.1959 Trade Union (Amendment) Ordinance, No. 17.1960 Employment (Amendment) Ordinance, No. 10.1962 Trade Disputes (Settlement) Act, No. 43.

Trade Unions (Revocation of Special Powers) Act, No. 44.Trade Union Ordinance (Amendment) Act, No.51.Civil Service (Negotiating Machinery) Act, No. 52.Employment Ordinance (Amendment) Act, No. 82

1963 Foreign Investments (Protection) Act, No. 40.1964 National Union of Tanganyika Workers (Establishment) Act, No. 18

Security of Employment Act, No. 62Trade Unions and Trade Disputes (Miscellaneous Provisions) Act, No. 64.

1927 Employment of Children on Machine Regulation. G.N. No. 46.1931 Employment ofChildren on Machinery Regulations, GN No. 49. 1939 Cotton

Ginneries (Age of Employment) Regulations, GN No. 232. 1940Employment of Women and Young Persons (Diamond Sorting)

1941 Rules. GN Nos. 269 and 270.

1943 Defence (Trade Disputes) Regulation, GN. 279.Defence (Lighterage Dispute) Order. GN No. 280.Defence (Lighterage Dispute) (Amendment) Order, GN No. 281.

1944 Master and Native Servants (Proper Feeding) Regulations.GNNo. 325.

1955 Dar es Salaam Dock Workers (Regulation of Employment) Order,GN No. 222.

1956 Trade Dispute (Arbitration and Settlement) Addition to Schedule Notice.GN No. 343.

1957 The Employment Ordinance (Commencement) Order, GN No. 16The Employment Ordinance (Exemption) Order, GN No. 39 Regulation of

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Wages and Termsof Employment (Calculation of Basic Minimum Waees)Rules, GN No. 69Wages Regulation (Area ofDar es Salaam Municipality) Order, GN No. 80.

1958 The Employment Ordinance (Exemption) Order, GNNo. 311. 1961The Employment Ordinance (Exemption) Order, GNNo. 26. 1962Trade Unions (Collection ofUnion Dues) Regulations, GN No 446 WagesRegulation Orger, GN No. 508.

1965 Songea District Council (Cultivation ofAgricultural Land) By-Laws, GN No.263.

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APPENDIX B

CODE OF EMPLOYMENT ETHICS

INDIVIDUAL RIGHTS

(1) A WORKERS RIGHTAn employer would be wise to remember that the employee is not an infenorbeing, but a fellow human. When solving a grievance by an employee theemployer should not think that the employee is out to make trouble -he thinkshe has a grievance.

(2) AWORKER S OBLIGATIONS

It would be unwise for an employee to think that employment gives him achance to be lazy and get away with itortake sick leave when he isnot sick.Inreturn for his pay the employee owes his employer a degree of loyaltywhichif andwhenhe fails to showhe can rightlybe disciplined or dismissed.

(3) STEPS BY EMPLOYER TO DEAL WITH GRIEVANCES

When an employee presents a grievance to the employer he should:

(i) Enquire into the nature of the employee s grievance;

(ii) Consider whether, by making some small concession he care move thegrievance;

(iii) Ifhe is unwilling or unable to satisfy the employee to direct the employeeto seek the advice ofan Industrial RelationsOfficerone ofwhose powers is toattempt reach a settlement without resort to litigation.

(4) STEPS TAKEN BYTRADE AUNION TO DEALWITH GRIEVANCESATrade Union Official approached by an employee alleging a grievanceshould:(i) Fully inquire into the circumstances from the employee;

(ii) Seek ameeting with the employer to inform him ofthe allegation and hearhis side of the case;

(iii) Endeavour to suggest a reasonable solution from the point of view ofboth parties, bearing in mind that, even ifone ofthose parties seems to haveno ground on which to stand itmay be necessary to offer him face-saver,(iv) If all efforts fail, report the dispute to the Labour Commissioner.

(5) TRAINING

The State, through the Vocational Training Act N 0.28of 1974 has takensamemajor steps to develop employment skills, in particular courses ofapprenticeship. All Major employers should devise their owntrainingprogrammes, which can be inspected by the Workers Education andParticipation Department of the Ministry of Labour. Otheremployers shouldensure that 25% of their work force qualify in apprenticeship forevery yearof operation. For the purposes of this section a major employer is defined asone employing ten people and above.

(6) PROPER USE OF SKILLS

It does notmake economic sense to sendanemployee ona course of trainingandthen fail to use his skills to the full, when he returns. Consequently thosewho are trained should obtain jobs commensurate with their skills. Doingotherwise will frustrate the skill andthecountry will notdevelop a workforcetrained to keep pace with moderntechnology.

(7) AN EMPLOYMENT EXCHANGE

Allwould be employees in theshop floor should register theirskills with thenearest Employmentexchange. Each employer shouldnotify vacancies to theEmployment exchange in sufficient time to allow the Exchange time to sendasapplicants those onits register with therequisite skills. Theemployer mustselect from among those applicants though he may askfora particular personto be includedin the list.He cannotengagea qualifiedapplicant fromanothersource. This scheme willenable the skilled worker looking forworkto get achance in competition, andthe employer will in turnhave a larger group ofapplicants tochoose from. Frequent inspections by theLabour Department ofemployment records will ensure compliance with the scheme.

(8) THE EMPLOYEES FACT IN REGISTRATION

A prospective employee should take the following steps:(i) Attendat the nearestemployment exchange and register. He shouldhavein his possession two passport-size photographs;(ii) Hewill receivea labourcardwithhisphotograph affixed thereonofwhichthe Employment Exchange will keep a copy;(iii)A qualified worker is free to look for a job himselfonly afterregistration. If he approaches an employer who is willing to takehim, theemployer may askthe Commissioner to include thatemployee s name inthelist of applicants for a postwhich the employer has advertised through theEmployment Exchange.

(iv) Any change in employers should be notified to the exchange and theEmployment Card suitably endorsed.

(9) EMPLOYER S PART IN REGISTRATION

(i)Anemployer should notify the Local Employment Exchange at least onemonth from the date a job falls vacant;

(ii) Incase ofurgent appointments theemployee should apply foracertificateofUrgency within forty eight hours of thejob falling vacant andtheExchangewill give authority to employ in urgency reasons forseeking thecertificate ofurgency must be specified in the application for thecertificate of urgency;

(iii) Whether in normal applications or inurgent applications, the employershouldconduct fair interviewsand engage the applicanthe finds most suitablethereafter. Any employee who feels hehasbeen unfairly treated should reportto the Labour Commissioner or to the trade union;

(iv) Noemployer should engage a person without asking for the latter sregistration card. Non-compliance will result inpenal action onthepartoftheemployer;

(v)The employer should send the completed work cardto the EmploymentExchange where details in the original card will becopied into the copy-cardkept by the exchange;

(vi) Any changes in employers should be communicated to the Exchange sothat the copy of Employment Card is suitably kept.

(10) TERMS AND CONDITIONS OF EMPLOYMENT

The object of employment is that an employee shall beengaged ina certaindefined area and offer defined services in reasonably good workingenvironment provided bya fairemployer. In turntheemployee isexpected tooffer loyal, reasonably competent service to his employer andhe will be paidmoney toenable him and his family to live. Allthese matters are taken care ofina contract of employment, which can be enforced in the courts. Like anyother relationship, however that of employment does not work best bycompulsion through the courts but byready acknowledgement ofwhat eachParty is entitled to expect.

(11) SATUTORY RIGHTS ARE A MINIMUM STANDARD

The employment laws set out a few compulsory nghts, which are the minimum,which could begiven toemployees. Anemployer who isonlyjust complying

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should consider the advantages ofoffering a little more. True there are plentythat will work for the minimum. But, everyone who is working for someoneelse will work harder and better ifhe thinks he isbeing well looked after inreturn.

(12) WAGES

(i) The employee should be free to use what he earns as he wishes:so he should be paid in money without restriction on its use.

(ii) The employee shall know from month to month what he is likely to receiveand should not be placed at risk of unlimited deductions.

(iii) There are, however, some deductions, which an employer should be entitledto make some, indeed, which he has to make.

(iv) Arisk ofthe deployment ofcapital in business is the possibility ofinsolvency. But the employee has earned the money he has worked for andshould not lose itjust because it is still owing to him when his employerbecomes solvent.

(13) NOTICE IN CASES OF TERMINATION OF SERVICE

Termination ofservices by anemployer whether by dismissal leading to lossofterminal benefits orto termination with terminal benefits is the employersultimate disciplinary weapon. Unless there are plenty ofjobs tobe hadtermination isa very severe penalty to be awarded asa last resort weapon. Ithas been a habit now to give one month s notice in cases of termination. Inother countries ithas become customary to give an employee with more yearsofservice more notice. He has settled down in his job more, has given hisemployer good service and no doubt, he has more commitments as he getsolder. For these reasons it seems fair to increase his entitlement. Since theaverage working life is about thirty years the periods of service and the noticeperiod should bedivided into three groups. For thefirst tenyears ofcontinuousservice the notice period should be one month. The second ten years ofcontinuous servicethenoticeperiodshouldbe three months, and the thirdtenyears of continuous service the notice period should be six months.

(14) PROPER PROCEDURE TO BE FOLLOWED IN TERMINATIONOF SERVICE

In all reported instances, however obvious itmay seem that the employee hasdone something forwhich he richly deserves dismissal, there should be timeto cool down and consider the matter. The employer should ask himselfwhether he is sure the employee did the act in question orhe was simply told

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(15)

by someone who may have a grudge against the employee. To avoid hastydecisions, which may later lead toindustrial action, the employer should takethe following steps:

INQUIRY (i) He should conduct an inquiry tomake sure he hasfacts to justify his reason for dismissal.

EXPLANATION

OF THEPOSITION (ii) Having established thereason for dismissal, the

employer should ensure that the employee knowsthe reason and that as a result, he (employer) isconsidering dismissal/termination.

HEARING (iii) when the employee appreciates the gravity of thesituation and the reason for that gravity he shouldbe asked to say anything to the point as to why heshould not be dismissed.

(v) After hearing the employee s side the employer isthen in a position fairly to make up his mind whatto do.

(vi) When he has made up his mind the employer shouldconsider whether it is necessary for the good of hisbusiness to dismiss; or a lessor penalty will do.Afterconsidering all the optionsthe employerthenawards the appropriate punishment

TERMINATION FOR ECONOMIC REASONS (LAY OFF/REDUNDANCES)

Sometimes anemployer may want to dismiss employees for reasons, whichhave nothing to do with the employee sconduct orcapacity but depend on theway the employer decides to run his business. Usually they all arise from adesire to run the business more economicallyeitherbecause it is losingmoneyor because it will make more money if newmethods are introduced. Suchdecisions do not always result in fewer people being employed. They maylead to replacement ofan employee by another because the former employeecannothandle the new methods. This type of temporary reorganisationbecause of seasonal considerations has nothing to do with the fault oftheemployee. Dismissal insuch circumstances should give rise tocompensationwhatever the procedure leading to the dismissal has been. Before dismissingthe employer should look at the situation to see ifhe can save the employeesjob or provide him with another. It is mandatory that an employer wishing toreorganise for economic reasons should discuss the situation with the Workers

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Committee and theField Branch ofthe Trade Union. Inallcases theemployershouldsee whetherhe can, or withinthe next six months would be able to,offer the employee his old job back oroffer him alternative employment.

2. TRADE UNIONS AND INDUSTRIAL RELATIONS

2:1. PURPOSE OF UNIONS

The proper purpose ofa Trade Union is to balance the economic strength oftheemployer with combined industrial strength ofthe employees. Theideaofa Union is strength, notweakness. So a trade union isnotinexistence merelyfor the weak and those in trouble. It is theduty of anemployee to support hiscomrades when he is in a strongpositionwith no problems. The individualshould be free to make his own choicewhetherto join a unionor not but heshould bear in mind that it is difficult for the isolated individual to survive inan industrial setting and that even r'he thinks he can do so he should beprepared to help the less fortunate.

2:2. RECRUITMENT OF TRADE UNION MEMBERS

The proper function of a trade union is to do its best to recruit members. Theemployee who is also a union official does notactwith disloyalty to hisemployer if he undertakes such recruiting. Hisdutyto his employer is to dohisjob properly andloyally. Buthehas alsoa loyalty to hisfellow worker. Anemployer should notsee the two loyalties as conflicting. Atrade union is notthere to destroy oreven damage the employer s business. It would beveryfoolish of it to try to do sobecause thiswould onlylose jobs for itsmembers.It is true that it is there to seethat theemployee is treated fairly, butit isonly a very foolish employer who would think hewould getsatisfactoryservice from employees who feel they are badly treated.

In other words, though a trade union and an employer look at the industrialscene from different points of view, the object of both should be to makeindustry work efficiently. Together they can ensure that this efficiency benefitseveryone in the industry.

2:3. DISPUTES

There will, ofcourse, betimes during this process when concessions are soughtwhich one orother side isunwilling tomake. It is easy for either side tojumptothe conclusion that ademand orrefusal reveals an unreasonable obstinacy,which can only beeliminated by force. Inpractice, force will quite oftenincrease the obstinacy. A trade union does not come to heel if its local leadersare dismissed. Astrike even ifitapparently achieves itspurpose, usually leavesresentment, probablyon both sides.And, after all, a strike is incapable ofsettling anything.

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Disputes canonly be settled bycompromise and compromise canonly comethrough negotiations.

2:4. GOOD INDUSTRIAL RELATIONS

The most important lesson to learn is that misunderstanding usually arisesfrom suspicion, and suspicion from not knowing what the other side isthinkingand doing. The bestrelations occur when an employer explains to a tradeunion what he isthinking ofdoing, andwhy andthenlistens to what theunionhas to say. Anemployer should notsee this asan attempt to runhisbusinessfor him or as some sort of intrusion on his right to make his own decisions.His decisions are bound to affect the lives of all his employees and it is onlyreasonable for them to wish to know about these decisions as far in advanceas possible.

2:5. REGISTRATION OF TRADE UNIONS

The system of trade union registration is designed to ensure that theorganisations are reasonably well run. Injust the same way as registeredcompanies must submit financial statements and file certain information soorganisations of employers andemployees are required to do so.Nooneseesthis as an interference with the business ofthe company and there is no reasonto see it as an interference with the business of employers and employeesorganisations. Such organisations are a very important part ofsociety andmust be well run in the interest of their members. It must be possible for themembership to find outwhere money isbeing spent, forinstance. Itmay wellbe that it is being spent properly, but openness willprevent rumours andsuspicion. Equally, the government ofany country needs to have a readilyavailable record of business and, in the same way, a similar source ofinformation about industrial organisation. These however, are the limits ofthe purposes ofregistration, which theTrade Union law should seek toachieve.

2:6. COLLECTIVE BARGAINING

The aim of collective bargaining is to facilitate the improvement uponminimum terms and conditions of employment where the employer canreasonably be expected tobe ina position tomake such improvement. Severalimportant principles concerning collective bargaining should be borne in mind;

2:6: 1. Neither bargaining norconsultation isaprocess whereby managementinforms employees of what it has decided to do. In consultation,management takes it apparent that it, is seeking the views oftheemployees while reserving theright to make a final decision. Innegotiation, management seeks agreement upon a jointdecision.

2:6:2. Bargaining is a two way process. It is nota process in which theemployee demands, and management considers, whether itcanyield

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to that demand. It is a process in which a request for improvement ismade by one side or the other. The side to whom the request is mademay well point out that it would be much easier to grant the request ifconcessions were made by the other side. As an example, increasedproductivity in return for increased wages can be one of suchdemand/concession situations. Great readiness to undertake a widerrange of jobs (flexibility) might well be the concession for protectionfrom redundancy.

2:6:3. Both sides need patience. Bargaining skills develop with practice,which is noticeably lacking in this country now. Workers mustremember that management which can recollect being locked in theiroffices by strikers are not likely immediately to realise how reasonableworkers are. On the other hand management which has refused tonegotiate and even dismissed employees for the slightest reason willhave to overcome a good dâl of suspicion and must expect initialsigns of militancy. He who has previously knocked in vain at a lookeddoor is likely to think that he must break it down without realisingthat it may already have been unlocked. Such misconceptionderivingfrom past history will require careful and painstaking effort beforebargaining which trust on both sides can develop.

2:7. INDUSTRIAL ACTION

The law on collective bargaining and industrial action contains restriction onthe freedom of trade unions to take part in industrial action. If a law laysdown negotiating procedure trade unions should not be free to discard thatprocedure at any moment and resort to industrial action. Secondly, tradeunions should be well aware that their proper purpose is to deal with industrialmatters. If they wish to use their strength politically they should resort topolitical methods of doing so and should not seek to analyse their employersby industrial action designed to achieve political purposes.Finally, trade unions must be aware that they have in their hands the power todo serious damage to the national economy. Government is the proper guardianof that economy and must, from time to time, take steps to protect it against athreat of destruction. The strike law has lengthy and complex provision fordealings with the situation in which the Government wishes to intervene tostop industrial action, which is threatening the economy. The provision isdesigned to require that, in return for stopping the industrial action, the disputeshould be fully investigated. It is often the case that full investigation for thefacts reveals quite clearly which side has the better case. In such circumstancesit may well be quite easy, as soon as the facts have been fully disclosed, for avoluntary settlement to be reached. There are provisions for an interval afterthe fact-finding when this voluntary settlement can be done.

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APPENDIX C

The State House,Dar es Salaam

REF:SHC/C. 180/1/102

Presidential Circular No.l of 1970

THE ESTABLISHMENT OF WORKERS COUNCILS, EXECUTIVECOMMITTEE AND BOARDS OF DIRECTORS

When opening the Friendship Textile Mill on Saturday, 6th July, 1968,1 said:We ask the people to work hard, yet in modern factories each man and womanis doing only a very small part ofthe whole process of production. How canbe really go on year in and year out taking a pride in that one job? Theimaginative people can do it, but for the majority it is very hard to relate onesimple task to the total output ofthe factory. Often the things; he does notknow what the factory as a whole is aiming at, and he does not know whatprogress they are making towards their combined aims. It is not sensible toexpect people to be enthusiastic about their jobs under these circumstances.

Let us, therefore, have targets for each factory worked out on the basis ofwhat can be sold and where. Let these targets be known to each worker, letthem be placards in big letters on the walls. And don t stop there; let eachseparate workshop, or process, or group of workpeople also have its targetper year, per month, per day. And then, having got the target clear, let it beequally clear what was actually achieved in the past year, month or day.

I believe that when our people have a clear target in front of them, and whenthey can see how far they have exceeded or how far they fall short of it, theywill respond to this challenge as they have responded to so many challengesin our recent history. They will want to beat the target; they will take pride intheir factory exceeding its target with good quality output. And they will realisethat, as they do their work, they are making a positive contribution to thesuccess ofTanzania s target which can only be made up of all the differenttargets of our factories, farms and offices.

2. Given a proper work environment, and proper Cupertino and support fromtheir leaders and fellows, the majority of Tanzanian workers are capable ofaccepting more responsibility, and would like to do so; they can become morecreative and can accomplish more. Easy communication of ideas and

information between workers, and between workers and all levels ofmanagement, can have the effect of improving the quantity and quality ofgoods produced, provided that an atmosphere of common endeavour andcommon responsibility is created. In particular, the top management musthave an attitude, which regards the workers and the lower levels ofmanagementas Fanners in a common enterprise, and not just as tools like the machinesthey work with.

3. It is now time for us to take positive steps to encourage such developmentsthroughout the modern sector ofthe economy, where it is only too easy for theworkers to be looked upon a special kind of factor ofproduction instead ofas the major part ofthe enterprise. Unit now, such an attitude has tended toexist in both public and private undertaking in Tanzania. For when we firstbegan to own industrial and agricultural enterprises as a community, andespecially when we expanded public ownership so rapidly after the ArushaDeclaration, we inevitably-and rightly-concentrated first on the sheermechanics of setting up, or taking over, economic concerns. We thereforefollowed in our public enterprises the same work customs as we had learnedfrom the traditional capitalist enterpnses a strict hierarchy of industrialdiscipline and a strict hierarchy of idea promotion, with just a suggestion boxput in for the occasional use ofthe more daring junior workers.

4. Industrial discipline is, of course, necessary at all times in any economic orsocial enterprise, whether it is publicly or privately owned. We shall make noprogress if we ignore that need. But true industrial discipline does not excludethe workers in an industry from participation in the enterprise, or from aresponsibility for its improvement. Indeed, true discipline in a workplace shouldbe easier when the workers understand what they are doing, what their objectiveis, and when they know that they have contributed to the formal result as fullyrespected partners.

5. This means that, quite apart from the workers committees which now exist,and which discuss conditions ofservice, warnings, and dismissals ofworkers,etc., there must be provision for the workers to be represented on bodies whichconsider matters of production, sales, and the general organisation oftheenterprise. It has therefore been decided thatallparastatal organisationsshall.as soon as possible and in any case not later than the end of1970 establishWorkers Councils, and shall establish or re-establish their ExecutiveCommittees and Boards of Directors so as to give practical effect to workersrepresentation and participation in planning, productivity, quality, andmarketing matters. These new Workers Councils do not affect the existenceor the functions ofthe Workers Committees. Their job is very different: it isto further industrial democracy in relation to the economic functions oftheenterprise, and gives the workers a greater and more direct responsibility inproduction. It is, in other words, intended that the new Workers, Councils,and the reconstituted Executive Committees and Boards of Directors, shall

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contribute to the general welfare of our nation by helping the efficiency andthe effectiveness of our public enterprises. They will do this by ensuring thatall workers in these enterprises understand and accept the practical implicationof their responsibility to their fellow workers and peasants in othersectors ofthe Tanzanian economy.

6. The functions and the constitution of these bodies will be as Follows:

WORKERS COUNCIL

7. Every Public Corporation or firm employing more than ten workers shallestablish a Workers Council which shall be constituted as follows:

(a) A TANU Chairman ofthe Branch established at the business.(b) The Manager or the General Manager.(c) All Heads of Departments of Sections.(d) AH Members of the Workers Committee.(e) Workers representatives elected in proportion to the number of

workers in different departments or sections, provided that the numberof these representatives added to the number of members oftheWorkers Committee does not exceed three quarters ofthe totalmembership ofthe permanent members. * In other words, if forexample the number of members ofthe Workers Council under (a),(b), (c) and (d) together total 24 members, of whom the numberunder (d) is 12, then the workers representatives should not totalmore than 6.

(f) Co-opted member/s from outside the business as and when required.The presence of such members shall be determined by agreementbetween NUTA (which includes the Workers Committee), and theManagement.

8. The National Union of Tanganyika Workers (NUTA) shall be entitled to senda representative to the Workers Council meeting.

9. The Council shall elect its own Chairman from amongst its members, exceptthat when the Council is first established it shall be presided over by theManager or the General Manager ofthe business concerned for a period ofone year. After that time the Manager or General Manager will be eligible forelection to the Chairmanship, equally with all other members.

10. The quorum ofthe Workers Council shall not be less than one half of themembers ofthe Council, excluding co-opted member/s.

11. The Workers Council shall meet at least once every six months, and emergencymeetings can be called whenever the need arises.

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FUNCTIONS

12. The functions ofthe Workers Council in, and in relation to, the business forwhich it established shall be:(a) toadvise onthe requirements oftheexisting wages and incomes policy

as announced by Government from time to time;(b) to advise on the marketing aspects ofthe commodity produced;(c) to advise on matters relating to the quality and quantity ofthe

commodity produced;(d) to advise on matters of planning;(e) toadvise on other aspects ofproductivity, such asworks andenterprise

organisation, technical knowledge, workers education, etc;(f) to receive and to discuss the Balance Sheet.

Permanent Member means (a), (b), (c) and (d) above.

13. The Management shall appoint thesecretary to the Council and the Councilshall regulate its own procedures for conducting its meetings.

14. The Workers Councils shall be advisory to die Board of Directors.

Constitution

15. The Executive Committee shall be constituted as follows:

(a) The Manager/General Manager as Chairman.(b) Heads of Departments or Sections.(c) Workers representatives elected bytheWorkers Council from among

theworkers representative members ofthe Workers Council providedtheir number is not more than one third ofthe total membership oftheExecutive Committee.

16. The Executive Committee shall have the following major functions:to scrutinise financial and production estimates prepared by management;to scrutinise labourprogrammes, including programmes for raising workersproductivity and education which are prepared by management and NUTA;to scrutinise finance, production, quality, export and marketing programmes,in consultation with the body or bodiesconcerned; to adviseon the executionofthe general policy as proposed'by the Workers Council and approved bythe Board of Directors; and generally to advise on the efficient running ofthe day-to-day work ofthe industry.

17. The Executive Committee shall be advisory to the Manager/General Managerwho will be the Chief Executive.

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THE BOARD OF DIRECTORS

Constitution

18. The Board of Directors shall have at least one of itsmembers nominated bythe National Union of Tanganyika Workers.

General Provision

19. The constitution ofthe institutions that are to be established in accordancewith the Directive may be variedaccording to any agreement reachedbetween NUTA and Management, subject to the approval ofthe Ministerresponsible for labour matters.

20. In case of any disputeas to the meaning of any provision in this directivethe LabourCommissioner, or anybody he nominates to represent him forthis purpose, shall make a ruling thereon, and this shall be final.

21. Labour Officers are required, and are empowered, to ensure and to supervisethe implementation of this Directive.

Signed,Julius K. Nyerere

W'h February, 1970

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Documents

LAW REFORM COMMISSION OFTANZANIA